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THE  SMITH  WILL  CASE. 

IN  THE  PROBATE  COURT  AT  BOSTON,  MASS.,  BEFORE 
HON.  JOHN  W.  McKIM,  JUDGE  OF  PROBATE. 


Petition  of  Hazen  J.  Burton,  Jr.  et  al.  for  Revocation  of  Probate  of  Will 
of  Ebenezer  Smith,  which  Will  was  Admitted  to  Probate  by 
Decree  of  Probate  Court,  November  17,  1864,  and,  on 
Appeal,  by  Decree  of  the  Supreme  Judicial 
Court,  October  5,  1865. 

Trial  December  4,  10,  n,  17,  18  and  31,  1878,  and  January  1,  7,  8,  14, 
21,  22,  23  and  24,  1879. 

Petition  dismissed  by  the  Court,  January  31,  1879. 


ARGUMENTS  FOR  RESPONDENTS, 

AND 

OPENING  ARGUMENT  FOR  PETITIONERS, 

Phonographically  reported  by  Walter  Rogers ,  15  Pemberton  Sq .,  Boston. 

HON.  BENJ.  F.  BUTLER,  )  Counsel  of  Record 

ALFRED  D.  CHANDLER,  Esq.,  j  for  Petitioners. 

JOHN  A.  LORING,  Esq.,  Counsel  for  Isaac  T.  Smith. 


Wm.  H.  DRURY,  Esq.,  Counsel  for  Dr.  Wm.  H.  Thorndike. 


HALLOWELL,  ME. 

Masters  &  Livermore,  Law  Printers. 
1879. 


:  .  J  Us/ 


CONTENTS. 


Page. 


Introductory  Note,  -------  4 

Petition  of  September  23,  1878,  -  -  -  -  -  5 

Opening  Argument  of  Alfred  D.  Chandler,  Esq.,  for  Petitioners,  8 

Opening  Argument  of  Wrn.  H.  Drury,  Esq.,  for  Dr.  Wm.  H.  Thorndike,  -  16 

Closing  Argument  of  John  A.  Loring,  Esq.,  for  Mr.  Isaac  T.  Smith,  39 

Closing  Argument  of  Wm.  H.  Drury,  Esq.,  for  Dr.  Wm.  H.  Thorndike,  -  -  85 


ERRATA. 

Page  69,  at  end  of  2d  line  from  top,  for  was  read  saw. 

Page  79,  10th  line  from  foot,  for  examination  read  extermination. 
Page  83,  15th  line  from  top,  for  respect  read  regret. 

Page  89,  25th  line  from  top,  for  do  read  undo. 


INTRODUCTORY  NOTE. 


The  original  petition  in  this  case,  the  substance  of  which  is  sufficiently  stated  in 
the  last  argument  herein  printed,  was  filed  in  the  Probate  Court,  May  6,  1878,  by 
Gen.  B.  F.  Butler,  who  was  then  counsel  for  the  petitioners ;  and  it  asked  for  the 
revocation  of  the  probate,  both  of  the  Will  of  Ebenezer  Smith,  who  died  October  12, 
1864,  and  of  the  Will  of  his  widow,  Eliza  Smith,  who  died  May  22,  1875.  So  much 
of  the  petition  as  related  to  the  Will  of  Eliza  Smith,  was  dismissed  by  the  Probate 
Court  in  July,  1878,  after  a  hearing  which  occupied  one  day’s  session  of  the  Court, 
on  motion  of  the  counsel  of  Mrs.  Sarah  W.  Thorndike,  the  principal  legatee  and 
devisee  in  that  Will.  That  part  of  the  petition  which  related  to  the  Will  of  Ebenezer 
Smith  was  set  down,  to  be  heard  and  tried  September  3,  1878;  at  which  time  the 
Executors  of  that  Will,  Mr.  Isaac  T.  Smith  of  New  York  City  and  Dr.  William  H. 
Thorndike  of  Boston,  moved  that  the  petitioners,  before  being  allowed  to  proceed 
further,  be  required  to  refund  to  the  Executors  the  sum  of  $5,000,  which  sum  the 
petitioners  received  May  18,  1866,  under  a  compromise  of  that  Will,  instead  of 
$1,000,  which  was  given  to  them  in  the  Will.  This  motion  of  the  Executors  was 
sustained  by  the  Court.  After  this  action  of  the  Court,  Gen.  Butler,  who  had 
appeared  up  to  this  time,  did  not  again  appear  in  the  case.  The  money  was  not  re¬ 
funded  ;  whereupon  the  Executors  withdrew  their  motion  and  waived  the  decree  of 
the  Court,  and  consented  to  a  trial  of  the  case,  as  if  the  motion  and  decree  had  not 
been  made.  New  counsel  was  engaged  by  the  petitioners,  who,  after  an  ineffectual 
effort  on  their  part  to  procure  the  dismissal  of  the  original  petition  without  prejudice, 
were  allowed  by  the  Court  to  amend  their  petition  as  far  as  it  related  to  the  Will  of 
Ebenezer  Smith,  by  substituting  the  amended  petition  of  September  23,  1878,  which 
is  herein  printed.  The  trial  of  the  case  was  begun  December  4,  1878,  and  it  con¬ 
tinued  through  December  10,  11,  17,  18  and  31,  1878,  and  January  1,  7,  8,  14,  21, 
22,  23  and  24,  1879.  The  petition  was  dismissed  by  the  Court  January  31,  1879. 
All  the  arguments,  except  the  closing  argument  for  the  petitioners,  were  phono- 
graphically  reported  by  Mr.  Walter  Rogers  of  Boston,  and  all  which  were  so  reported 
are  herein  printed,  except  the  opening  argument  for  Mr.  Isaac  T.  Smith. 

Boston,  Mass.,  February  1,  1879. 


THE  SMITH  WILL  CASE. 


IN  THE  PEOBATE  COUET  AT  BOSTON,  MASS.,  BEFOEE 
HON.  JOHN  W.  McKIM,  JUDGE  OF  PEOBATE. 


Petition  of  Hazen  J.  Burton,  Jr.  et  al.  for  Revocation  of  Probate  of  Will 
of  Ebenezer  Smith,  which  Will  was  Admitted  to  Probate  by 
Decree  of  Probate  Court,  November  17,  1864,  and,  on 
Appeal,  by  Decree  of  the  Supreme  Judicial 
Court,  October  5,  1865. 

Trial  December  4,  10,  11,  17,  18  and  31,  1878,  and  January  1,  7,  8,  14, 
21,  22,  23  and  24,  1879. 

Petition  dismissed  by  the  Court,  January  31,  1879. 


ARGUMENTS  EOR  RESPONDENTS, 

AND 

OPENING  ARGUMENT  FOR  PETITIONERS, 

Phono  graphically  reported  by  Walter  Rogers ,  15  Pemberton  Sq.,  Boston. 

HON.  BENJ.  F.  BUTLER,  T  Counsel  of  Record 

ALFRED  D.  CHANDLER,  Esq.,  j  for  Petitioners. 

JOHN  A.  LORING,  Esq.,  Counsel  for  Isaac  T.  Smith. 

Wm.  H.  DRURY,  Esq.,  Counsel  for  Dr.  Wm.  H.  Thorndike. 


HALLOWELL,  ME. 

Masters  &  Livermore,  Law  Printers. 
1879. 


CONTENTS. 


Page. 

Introductory  Note,  -------  4 

Petition  of  September  23,  1878,  -  -  -  -  -  -  5 

Opening  Argument  of  Alfred  D.  Chandler,  Esq.,  for  Petitioners,  -  -  8 

Opening  Argument  of  Wm.  H.  Drury,  Esq.,  for  Dr.  Wm.  H.  Thorndike,  -  16 

Closing  Argument  of  John  A.  Loring,  Esq.,  for  Mr.  Isaac  T.  Smith,  39 

Closing  Argument  of  Wm.  H.  Drury,  Esq.,  for  Dr.  Wm.  H.  Thorndike,  -  -  85 


ERRATA/ 

Page  69,  at  end  of  2d  line  from  top,  for  was  read  saw. 

Page  79,  10th  line  from  foot,  for  examination  read  extermination. 
Page  83,  15th  line  from  top,  for  respect  read  regret. 

Page  89,  25th  line  from  top,  for  do  read  undo. 


INTRODUCTORY  NOTE. 


The  original  petition  in  this  case,  the  substance  of  which  is  sufficiently  stated  in 
the  last  argument  herein  printed,  was  filed  in  the  Probate  Court,  May  6,  1878,  by 
Gen.  B.  F.  Butler,  who  was  then  counsel  for  the  petitioners ;  and  it  asked  for  the 
revocation  of  the  probate,  both  of  the  Will  of  Ebenezer  Smith,  who  died  October  12, 
1864,  and  of  the  Will  of  his  widow,  Eliza  Smith,  who  died  May  22,  1875.  So  much 
of  the  petition  as  related  to  the  Will  of  Eliza  Smith,  was  dismissed  by  the  Probate 
Court  in  July,  1878,  after  a  hearing  which  occupied  one  day’s  session  of  the  Court, 
on  motion  of  the  counsel  of  Mrs.  Sarah  W.  Thorndike,  the  principal  legatee  and 
devisee  in  that  Will.  That  part  of  the  petition  which  related  to  the  Will  of  Ebenezer 
Smith  was  set  down,  to  be  heard  and  tried  September  3,  1878  ;  at  which  time  the 
Executors  of  that  Will,  Mr.  Isaac  T.  Smith  of  New  York  City  and  Dr.  William  H. 
Thorndike  of  Boston,  moved  that  the  petitioners,  before  being  allowed  to  proceed 
further,  be  required  to  refund  to  the  Executors  the  sum  of  $5,000,  which  sum  the 
petitioners  received  May  18,  1866,  under  a  compromise  of  that  Will,  instead  of 
$1,000,  which  was  given  to  them  in  the  Will.  This  motion  of  the  Executors  was 
sustained  by  the  Court.  After  this  action  of  the  Court,  Gen.  Butler,  too  had 
appeared  up  to  this  time,  did  not  again  appear  in  the  case.  The  money  was  not  re¬ 
funded  ;  whereupon  the  Executors  withdrew  their  motion  and  waived  the  decree  of 
the  Court,  and  consented  to  a  trial  of  the  case,  as  if  the  motion  and  decree  had  not 
been  made.  New  counsel  was  engaged  by  the  petitioners,  who,  after  an  ineffectual 
effort  on  their  part  to  procure  the  dismissal  of  the  original  petition  without  prejudice, 
were  allowed  by  the  Court  to  amend  their  petition  as  far  as  it  related  to  the  Will  of 
Ebenezer  Smith,  by  substituting  the  amended  petition  of  September  23,  1878,  which 
is  herein  printed.  The  trial  of  the  case  was  begun  December  4,  1878,  and  it  con¬ 
tinued  through  December  10,  11,  17,  18  and  31,  1878,  and  January  1,  7,  8,  14,  21, 
22,  23  and  24,  1879.  The  petition  was  dismissed  by  the  Court  January  31,  1879. 
All  the  arguments,  except  the  closing  argument  for  the  petitioners,  were  phono- 
graphically  reported  by  Mr.  Walter  Rogers  of  Boston,  and  all  which  were  so  reported 
are  herein  printed,  except  the  opening  argument  for  Mr.  Isaac  T.  Smith. 

Boston,  Mass.,  February  1,  1879. 


The  Petition  of  September  23, 1878. 


COMMONWEALTH  OP  MASSACHUSETTS. 
Suffolk,  ss. 


To  the  Honorable  the  Judge  of  the  Probate  Court ,  in  and  for  the 

County  of  Suffolk; 

Hazen  J.  Burton,  Jr.  ,  of  Brookline,  and  George  S.  Burton,  of  Boston, 
in  the  said  Commonwealth,  lieirs-at-law  of  Ebenezer  Smith,  late  of  said 
Boston,  deceased,  respectfully  allege  that  on  or  about  the  seventeenth 
day  of  November,  1864,  a  certain  instrument  in  writing  was  admitted 
to  probate  by  the  probate  judge  of  the  county  of  Suffolk,  as  and  for  the 
last  will  and  testament  of  the  said  Ebenezer  Smith,  and  letters  testamen¬ 
tary  thereon  were  afterwards  issued  by  the  said  judge  of  probate  to  Isaac 
T.  Smith,  Hr.  William  IT.  Thorndike  and  William  Minot,  Jr.,  executors 
named  in  the  said  supposed  will,  and  that  Ebenezer  Smith,  Jr.,  (now 
deceased),  James  [Hazen  J.]  Burton,  Jr.,  George  [George  S.]  Burton, 
Eliza  Smith  (now  deceased),  Isaac  T.  Smith,  Eliza  W.  Smith,  and  Sarah 
W.  Thorndike  (now  deceased),  were  named  as  legatees  in  the  said  will, 
aud  all  reside  in  the  said  Commonwealth,  except  the  said  Isaac  T.  Smith, 
a  resident  of  New  York  City. 

The  said  Hazen  J.  Burton,  Jr.,  and  the  said  George  S.  Burton,  peti¬ 
tioners  as  aforesaid,  further  allege  : — 

First.  That  the  said  Ebenezer  Smith  did  not  sign  the  said  instrument. 

Second.  That  the  said  Ebenezer  Smith  did  not  by  his  express  direction 
authorize  his  name  to  be  signed  to  the  said  instrument. 


6 


Third.  That  the  said  Ebenezer  Smith  did  not  make  known  to  the 
witnesses  thereto,  either  by  word  or  by  aet,  that  the  signature  to  the  said 
instrument  was  his  signature,  or  that  it  was  written  tor  him  by  his  ex¬ 
press  direction. 

Fourth.  That  the  said  Ebenezer  Smith,  did  not  declare  in  the  presence 
of  the  witnesses  thereto  that  the  said  instrument  was  his  will. 

Fifth.  That  the  said  Ebenezer  Smith  did  not  request  the  witnesses  to 
the  said  instrument  to  attest  it. 

Sixth.  That  the  said  Ebenezer  Smith  never  knew  and  understood  the 
contents  of  the  said  instrument. 

Seventh.  That  at  the  time  of  the  execution  of  the  said  instrument  the 
said  Ebenezer  Smith  was  not  of  sound  and  disposing  mind  and  memory, 
but  was  wholly  incapable  of  making  a  valid  will,  horn  the  impairment  of 
his  faculties  by  reason  of  old  age,  of  sickness,  and  other  causes. 

Eighth.  That  the  said  instrument  and  the  supposed  signature  thereto 
of  the  said  Ebenezer  Smith  were  obtained  and  procured  by  collusion,  by 
fraud,  by  undue  influence,  and  by  force. 

Ninth.  That  the  proof  hitherto  presented  to  the  honorable  judge  of 
this  Court,  in  the  probate  of  the  said  supposed  will,  was  uncertain  and 
not  competent  to  establish  the  due  execution  thereof,  and  the  competency 
of  the  said  Ebenezer  Smith. 

Tenth.  That  the  probate  of  the  said  supposed  will  was  obtained 
fraudulently  and  mala  fide ,  by  making  false  suggestions  and  by  surrep¬ 
titious. and  clandestine  conduct  in  concealing  from  the  honorable  judge  of 
this  Court  evidence  material  to  the  case,  which,  if  now  disclosed,  will 
justify  the  revocation  of  the  probate  of  the  said  instrument  and  of  the 
letters  testamentary  thereon  obtained. 

The  petitioners  further  allege  that,  always  acting  in  conscience  and 
good  faith,  they  have  used  every  reasonable  diligence  to  discover  proof  of 
the  aforesaid  allegations;  that  the  truth  was  long  and  studiously  and 
successfully  concealed  from  them ;  and  their  first  knowledge  of  the  irreg¬ 
ularities  herein  alleged  was  not  had  by  them  till  September,  1870,  ever 
since  which  time  they  have  diligently  and  thoroughly  worked  to  ascertain 
the  facts,  and  have  promptly  and  persistently  pressed  their  claim  in  the 
courts. 

Wherefore  your  petitioners  pray  that  the  decree  of  this  honorable 
Court  admitting  to  probate  the  will  of  the  said  Ebenezer  Smith,  unlaw¬ 
fully  obtained,  as  herein  alleged,  may  be  revoked  and  annulled,  and  that 
all  subsequent  probate  decrees  based  thereon  may  be  revoked  and  annulled, 
and  that  your  petitioners  may  have  such  further  or  other  relief  in  the 


7 

premises  as  the  nature  of  this  case  may  require  and  as  to  your  Honor 
shall  seem  meet. 

May  it  please  your  Honor  to  grant  unto  your  petitioners,  the  said 
Hazen  J.  Burton,  Jr.,  and  the  said  George  S.  Burton,  a  citation  to  he 
issued  to  the  said  Isaac  T.  Smith,  Eliza  W.  Smith,  Hr.  William  H.  Thorn¬ 
dike,  and  to  all  other  persons  interested,  requiring  them  to  appear  before 
this  honorable  Court,  at  a  time  and  place  to  be  therein  fixed,  to  show 
cause,  if  any  they  have,  why  the  probate  of  the  said  supposed  will  of  the 
said  Ebenezer  Smith  should  not  be  revoked,  and  why  the  prayer  of  this 
petition  should  not  be  fully  granted ;  and  further  to  stand  to,  perform  and 
abide  such  further  order,  direction  and  decree  therein  as  to  this  honorable 
Court  shall  seem  meet. 

Dated  at  Boston,  Sept.  23,  1878. 

HAZEN  J.  BURTON,  Jr. 

GEORGE  S.  BURTON. 


A.  D.  CHANDLER,  Attorney. 


Suffolk,  ss. 


Commonwealth  of  Massachusetts. 


On  this  twenty-third  day  of  September,  a.  d.  1878,  personally  ap¬ 
peared  the  above  named,  Hazen  J.  Burton,  Jr.,  and  George  S.  Burton, 
and  made  oath  that  they  verily  believe  the  allegations  contained  in  the 
above  petition  are  true. 

Before  me 

RICHARD  STONE,  Jr. 

Justice  of  the  Peace. 


8 


Opening  Argument  of  Alfred  D,  Chandler,  Esq., 

Counsel  for  the  Petitioners. 

DECEMBER  4,  1878. 


May  it  please  your  Honor  :  —  At  his  decease,  on  the  12th  of  October,  1864, 
Ebenezer  Smith  was  possessed  of  a  fortune.  The  executors,  I  find,  of  his  sup¬ 
posed  will  have  accounted  for  nearly  half  a  million  dollars,  and  that,  too,  after 
disposing  of  property  at  forced  sales.  Who  this  Ebenezer  Smith  was,  how  he 
amassed  this  fortune,  and  how  these  petitioners,  his  two  grandsons,  have  been 
defrauded  of  their  rightful  share,  can  soon  be  told.  The  facts,  when  revealed, 
will  show  the  course  of  a  life  advancing  from  poverty  to  wealth  ;  they  will  show, 
on  the  one  side,  an  honorable  struggle  to  preserve  and  to  transmit  that  wealth 
wisely,  and  on  the  other  side,  threats,  intimidation,  fraud,  force,  and  at  last 
forgery,  in  grasping  that  wealth  from  a  man  nearly  eighty  years  of  age,  en¬ 
feebled  and  unconscious.  Mr.  Smith,  I  am  told,  was  born  in  Cheshire  County, 
Xew  Hampshire,  and  at  an  early  age  in  his  life  made  his  way  to  Boston,  mostly 
on  foot.  So  far  as  I  can  learn,  his  only  resources  were  his  health,  his  good 
sense,  and  his  willingness  to  work.  In  a  short  time  he  developed  into  a  shrewd, 
capable,  long-headed  business  man.  He  was  successful.  His  first  venture  was 
in  a  little  store  on  Haymarket  Square,  in  this  city  ;  soon  he  bought  that  store  ; 
continuing  in  trade  he  was  enabled  to  buy  an  estate  adjoining,  and  not  long  after 
an  estate  near  to  that ;  till  at  last  by  these  successive  purchases  he  became  one 
of  the  largest  owners  of  real  estate  in  that  quarter  of  the  city  ;  his  property 
reaching  through  to  the  river,  occupying  a  part  of  the  present  site  of  the  Boston 
and  Maine  Railroad  depot,  and  extending  along  the  old  Middlesex  Canal. 

Mr.  Smith  was  married  comparatively  early  ;  he  was  the  father  of  three  sons 
and  of  six  daughters,  out  of  all  of  whom  there  were  living  at  the  time  of  his 
death  but  three  —  Isaac  T.,  of  New  York  City,  President  of  the  Metropolitan 
Savings  Bank,  Eliza  W.,  now  living  in  Natick  in  this  State,  and  Sarah  W., 
who  was  the  wife  of  Dr.  Wm.  H.  Thorndike,  of  this  city.  Though  his  family 
was  large,  yet  from  his  success  and  increasing  income  he  was  enabled  to  pro¬ 
vide  suitably  and  even  liberally  for  them.  Nay,  more,  —  and  here  your  Honor 
will  observe  a  pertinent  trait  in  that  man’s  character,  —  Mr.  Smith  was  of  a 
large,  and  generous  disposition  ;  his  acquisitions  were  not  alone  for  his  own 
personal  benefit ;  he  seemed  to  have  been  a  man  who  was  incapable  of  accum¬ 
ulating  for  the  selfish  love  of  accumulation  itself ;  while  he  guarded  his  wealth 
as  a  wise  man  should,  yet  his  was  a  liberal,  a  whole-souled  nature.  He  was  a 
l^atron  of  art  and  of  music.  He  was  a  member  of  the  Handel  and  Haydn 


9 


Society.  Upon  the  advent  of  Jenny  Lind,  I  am  told  he  was  a  large  buyer  of 
tickets,  for  the  mere  encouragement  of  song.  He  was  a  loyal  citizen  and 
generous  in  his  patriotism,  being  one  of  those  toward  whom  the  managers  of 
campaign  would  confidently  turn  for  the  needed  aid.  I  am  told  that  Mr.  Smith 
was  one  of  a  number  who  once  contributed  $1,000  each  for  the  relief  of  Daniel 
Webster.  But  apart  from  all  his  more  public  benefactions,  the  extent  of  his 
private  charities  may  never  be  known,  for  he  was  always  silently  giving,  silently 
relieving  the  aged,  and  the  poor.  I  have  dwelt  for  a  moment  upon  this,  that 
your  Honor’s  attention  may  be  especially  directed  to  the  fact  that  Ebenezer 
Smith  was  one  of  the  last  among  men  to  exhibit  a  spirit  of  meanness  or  of 
injustice  toward  any  of  his  race,  a  fortiori  to  any  of  his  own  flesh  and  blood. 

His  sons  were  all  given  a  liberal  education,  having,  I  believe,  all  of  them, 
the  advantage  of  a  collegiate  course.  Whatever  moral  defects  any  of  his  children 
may  have  shown  later  in  life,  that  father  did  all  that  an  affectionate  father  could 
for  their  proper  training  and  education.  His  daughters  were  given  every 
advantage  equally  with  his  sons.  Out  of  all  the  six  daughters  but  one  is  now 
living,  Eliza  W.,  of  Natick,  and  she  is  to  be  a  principal  witness  in  this  case, 
for  the  petitioners.  That  your  Honor  may  judge  of  the  position  and  character 
she  has  held  and  maintained,  I  need  but  allude  to  the  fact  that  she  was  for  many 
years  a  successful  and  well  known  instructress  of  young  ladies.  Her  success 
in  Washington  in  this  respect  was  very  gratifying.  Her  seminary  at  West 
Medford,  had  a  wide  reputation  ;  and  I  find  among  the  list  of  names  upon  the 
visiting  committee  of  that  seminary  such  names  as  these  :  —  Rt.  Rev.  Manton 
Eastburn,  D.D.,  President  Walker  of  Harvard  University,  President  Sears  of 
Brown  University,  Judge  Bigelow,  Rufus  Choate,  Charles  Sumner,  and  Pro¬ 
fessor  Longfellow  ;  and  among  the  references  are  the  names  of  Edward  Everett, 
Robert  C.  Winthrop,  Abbott  Lawrence,  Samuel  Houston  of  Texas,  and  others 
from  Canada,  Cuba,  South  America,  and  Smyrna.  I  speak  of  this  because 
Mrs.  Eliza  W.  Smith  is  to  be  an  important  witness  in  this  case,  and  it  is  fitting 
that  your  Honor  should  have  a  proper  conception  of  the  position  that  this  lady 
has  held.  Of  that  daughter  who  died  a  quarter  of  a  century  ago,  and  who  was 
the  mother  of  these  petitioners,  I  may  well  make  mention  also.  She  was  one 
of  Ebenezer  Smith’s  favorite  children,  and  beloved  by  all.  His  fondness  for 
her  and  for  her  two  only  sons  was  constantly  shown.  That  daughter,  Harriet, 
w;as  married  to  Mr.  Hazen  J.  Burton  in  1S46.  Mr.  Burton  was  then  in  the  full 
tide  of  success.  He  had  already  acquired  a  large  property.  He  considered 
himself  as  independent,  and  his  fortune  was  increasing.  Because  of  his  inde¬ 
pendence  and  of  his  brilliant  prospects,  it  was  arranged  between  himself  and 
his  father-in-law,  Mr.  Smith,  that  the  latter  should  make  no  formal  settlement 
at  that  time  in  favor  of  his  daughter,  for  it  was  unnecessary,  Mr.  Burton’s 
circumstances  being  at  that  time  quite  equal  to  those  of  Mr.  Smith  ;  but  at  the 
same  time  it  was  understood,  and  distinctly  affirmed  by  Mr.  Smith,  and  reitera¬ 
ted  again  and  again  later  on,  that  in  the  event  of  misfortune,  he  would  amply 
provide  for  Mrs.  Burton  and  the  children. 


IO 


During  the  married  life  of  his  daughter  Harriet,  Mr.  Smith  was  a  constant 
visitor  at  the  house  of  his  son-in-law,  Mr.  Burton.  His  visits  were  often  daily  ; 
and  it  was  immaterial  whether  Mr.  Burton  was  living  at  his  house  on  Essex 
street,  in  this  city,  or  at  his  country  residence  in  the  Highlands,  or  elsewhere  ; 
wherever  they  were  Mr.  Smith  continued  his  visits. 

Mrs.  Burton  died  of  consumption  in  1853,  seven  years  after  her  marriage. 
But  the  close,  the  cordial  relations  between  Mr.  Smith  and  the  Burtons  still 
continued.  When  Mr.  Burton  at  last  met  with  misfortune,  losing  his  property, 
Mr.  Smith  even  took  him  and  his  whole  family  into  his  own  household  out  at 
Winchester,  where  they  all  lived  together  in  harmony  and  friendship.  During 
this  time  his  conversations  with  Mr.  Burton  were  often  of  a  confidential  kind. 
He  had  the  utmost  confidence  in  him  and  entrusted  him  quite  as  much  as  any 
man  with  his  inmost  thoughts.  His  affection,  his  love  for  these  two  grand¬ 
sons,  was  continually  shown  in  acts  and  words.  He  wished  to  be  consulted  on 
all  that  pertained  to  their  present  and  future  welfare.  He  gave  his  advice  upon 
their  training  and  education,  and  his  advice  was  followed.  For  instance,  it  was 
an  important  step  in  the  career  of  these  boys’  lives  whether  they  should  be  given 
the  advantage  qf  a  collegiate  education,  or  be  put  at  once  into  a  mercantile  ca¬ 
reer.  Mr.  Smith  was  in  favor  of  the  latter,  partly  because  of  the  disappoint¬ 
ment  he  had  met  in  sending  some  of  his  own  sons  to  college.  In  this  Mr. 
Smith’s  wishes  were  yielded  to.  and  the  boys  were,  at  his  suggestion,  taken  into 
the  business  in  which  their  father,  Mr.  Burton,  was  then  engaged.  Thus  it  was 
that  this  most  important  step  in  their  lives  was  determined  by  their  grandfather. 
As  Mr.  Smith  advanced  in  years  and  passed  the  allotted  period,  he  still  contin¬ 
ued  to  exhibit  this  affection  and  fondness  for  the  two  sons  of  his  deceased  daugh¬ 
ter  Harriet,  always  mentioning  them  by  name,  and  invariably  sending  them  his 
kindest  love  when  he  met  their  father  on  the  street ;  and  up  to  the  very  end, 
when  racked  and  agonized  by  the  family  dissensions  of  which  I  am  yet  to  speak, 
he  said  to  Mr.  Burton,  one  day  upon  the  street,  after  expressing  his  fear  that  he 
would  never  see  the  boys  again  :  “  Remember  me  kindly  to  them,  and  tell  them 
poor  old  grandfather  thinks  of  them.” 

I  have  dwelt  upon  this,  that  your  Honor  may  in  a  measure  appreciate  the 
partiality  and  good-will  which  this  fond  grandfather  had  for  these  two  grand¬ 
sons.  I  wish  to  impress  this  upon  the  Court,  because  it  will  show  that  the  will 
which  we  now  dispute  is  of  itself  conclusive  proof  that  it  does  not  express  the 
views  of  the  justice,  the  benevolence,  and  the  affections,  which  that  fond  grand¬ 
father  had  for  these  grandchildren.  That  will  is  so  repugnant  to,  so  unmistak¬ 
ably  in  conflict  with,  the  lifelong  sentiments  entertained  by  Mr.  Smith,  in  that  it 
cuts  off  these  pet  grandsons  with  a  paltry  $500  out  of  about  $500,000,  that  we 
might  confidently  rest  our  case  upon  the  proof  of  this  alone,  but  for  the  duty  we 
owe  the  Court  and  all  concerned  to  lay  bare  the  great  wrong  and  great  fraud  of 
which  some  of  these  parties  have  been  guilty. 

So  far  as  I  have  discovered,  the  first  cause  of  estrangement  between  Mr. 
Smith  and  any  of  his  family  arose  at  the  time  of  a  great  auction  sale  on  Hay- 
market  Square,  about  the  year  1840.  The  character  and  value  of  the  property 


II 


which  Mr.  Smith  then  put  upon  the  market  was  such  that  buyers  were  attracted 
from  all  parts.  He  had  elaborate  and  valuable  plans  made  and  distributed.  The 
sale  was  conducted  by  the  most  popular  auctioneer  of  the  day,  and,  I  under¬ 
stand,  was  at  its  height,  when  Mrs.  Smith  sent  word  that  she  would  not  release 
her  dower.  The  effect  of  this  was  to  check  all  further  proceedings.  The  con¬ 
course  of  buyers  and  spectators  was  broken  up  perforce,  and  Mr.  Smith  was 
subjected  to  a  mortification  in  public  for  which  he  seemed  never  to  have  fcrgiv- 
en  his  wife.  This  jar  (it  was  a  serious  one)  tended  to  alienate  the  affection  be¬ 
tween  the  two,  and  from  this  and  other  causes,  by  degrees  Mr.  Smith  became 
suspicious  of  his  wife,  there  grew  up  a  feeling  of  distrust  between  them  which 
went  so  far,  I  understand,  that  after  that  they  never  occupied  the  same  room 
again  together.  Mr.  Smith  then  began  to  be  suspicious  of  some  of  his  children. 
In  time  he  practically  withdrew  from  their  society,  excepting  that  of  his  daugh¬ 
ter  Eliza  and  that  of  his  deceased  daughter  Harriet,  toward  whom  he  always 
showed  his  friendship  and  respect  and  with  whom  he  was  always  intimate,  for 
they  were  indisputably  his  favorite  children.  To  such  an  extent  was  this  alien¬ 
ation  from  his  family  carried,  that  he  had  built  in  the  basement  of  his  house  on 
Beacon  Hill,  in  this  city,  a  brick  chamber  or  cell,  wherein  he  kept  himself  se¬ 
cluded,  allowing  no  intrusion,  and  rarely  often  even  admitting  any  one.  Fora 
long  time  he  was  unwilling  to  take  his  meals  in  his  own  house  when  he  could 
well  avoid  doing  so.  And  it  is  even  affirmed,  that,  so  suspicious  had  he  become, 
he  was  unwilling  to  drink  till  his  cup  was  rinsed  in  his  presence  ;  nor  would  he 
eat  there  till  after  others  had  eaten.  These  peculiarities,  however,  were  never 
shown  either  at  the  house  of  his  daughter  Eliza,  or  at  the  Burtons,  for  in  them 
he  had  confidence  and  in  them  alone. 

Owning  so  much  real  estate,  he  often  wished  to  make  transfers  ;  and  to 
facilitate  this,  on  account  of  the  difficulty  with  his  wife,  he  conveyed  the  larger 
part  of  his  property  to  be  held  in  trust,  (and  this  is  important),  with  power  in 
the  trustees  to  sell  as  he  might  direct,  thus  simplifying  the  difficulty  he  had  in 
getting  his  wife’s  signature. 

As  his  son  Isaac  grew  to  man’s  estate  he  more  than  once  urged  his  father  for 
money,  and  he  often  endeavored  to  impress  upon  his  father  the  advisability  of 
imitating  the  English  rule  of  primogeniture,  so  that  the  bulk  of  the  estate  might 
fall  to  him,  who  was  then  the  eldest  living  son.  Finding  that  his  father  refused 
to  fall  in  with  his  schemes,  Isaac  went  so  far  as  to  threaten  to  put  his  father 
under  guardianship,  a  subject  he  actually  had  the  family  discuss,  including  Mrs. 
Smith,  and  which  the  old  gentleman  stoutly  resented,  affiming  to  his  daughter 
Eliza  that  such  a  movement  would  kill  him.  A  man  who  had  worked  his  own 
way  into  the  world,  managing  his  own  great  estate,  still  competent,  Isaac 
threatened  to  put  under  guardianship,  that  he  might  then  get  control  of  him. 

It  was  during  these  events  that,  in  conversation  with  Mr,  Burton,  Mr.  Smith 
expressed  himself  in  regard  to  the  disposition  of  his  property,  observing  to  Mr. 
Burton  that  the  laws  of  Massachusetts  were,  in  his  opinion,  very  just  in  dispos¬ 
ing  of  the  property  of  an  intestate,  and  that  if  he  made  a  will  it  would  not  vary 
materially  in  its  bequests  from  what  the  law  would  do  without  a  will.  It  was 


12 


the  fear  of  his  so  acting,  probably,  that  led  his  son  Isaac,  and  other  members 
of  the  family,  to  importune  Mr.  Smith  on  this  matter.  To  what  extent  Mr. 
Smith  was  beset  by  these  importunities,  of  how  bold  and  desperate  a  nature 
they  were,  and  how  keenly  he  felt  them,  is  shown  in  a  startling  way  by  these 
few  lines  addressed  to  Mr.  Burton  as  late  as  April  u,  1862  :  — 

Dear  Sir.  —  Inclosed  is  Helen’s  bank-book.  She  has  written  to  me  for  it  to  get  the  interest. 

It  would  give  me  pleasure  to  call  at  the  house,  but  I  am  not  able.  I  must  fight  or  be 
robbed  of  the  last  pound  of  flesh  and  last  dollar. 

Best  regards  to  all.  e.  s. 

April  11,  ’G2.  Box  P.  O.,  Boston. 

In  the  above  note,  Mr.  Smith  alludes  to  “  Helen’s  bank-book.”  Helen  was 
a  daughter  of  Mr.  Burton  by  a  former  marriage,  and,  though  she  was  not  re¬ 
lated  by  blood  to  Air.  Smith,  yet  he  had  voluntarily  and  silently  —  as  was  his 
wont — deposited  $500  in  the  savings  bank  for  her  as  far  back  as  1853.  He  also 
deposited  $500  in  the  same  way  for  her  sister  Laura.  At  the  time  these  de¬ 
posits  were  made  for  the  Burton  boys’  half-sisters,  Air.  Smith  reiterated  what 
he  had  so  often  formerly  expressed,  “  Never  fear  for  the  boys,  I  will  look  out 
for  the  boys.  Give  yourself  no  concern  about  them.” 

Air.  Burton  had  been  well  aware  of  the  rupture  in  Air.  Smith’s  household  ; 
but,  as  the  above  note  proves,  he  was  himself  in  the  confidence  of  Air.  Smith. 

There  seems  to  have  been  a  determination  on  the  part  of  other  members  to 
so  manoeuvre  as  to  cut  off  the  Burtons  from  their  lawful  inheritance.  As  Mr. 
Smith  grew  more  feeble,  and  so  was  more  easily  influenced,  he  was  kept  a 
closer  prisoner ;  the  threats  of  guardianship  were  continued  ;  and  matters  at 
last  went  so  far  that  Air.  Burtpn  and  his  boys  were  denied  entrance  to  his 
house,  even  at  his  death-bed.  Air.  Smith  felt  his  imprisonment ;  so  little  confi¬ 
dence  had  he  in  some  of  those  about  him,  that  he  sat  in  his  sick-chair,  even  in 
his  sleep,  holding  a  cane  across  a  little  table  close  by,  to  prevent  the  removal, 
without  his  knowledge,  of  important  papers  he  kept  in  the  table  drawer.  Yet, 
in  spite  of  these  dying  efforts,  the  papers  in  that  drawer  were  taken  away  from 
him  before  his  death,  and  were  afterwards  burnt  up,  when  found  to  be  at 
variance  with  the  will  which  we  now  dispute.  Thus  it  was  that  those  toward 
whom  Ebenezer  Smith  entertained  suspicion,  fear  and  distrust,  now  had  him 
in  their  power  ;  while  those  toward  whom  Ebenezer  Smith  had  always  be¬ 
stowed  whatever  confidence,  love,  and  affection  he  had  to  give,  were  cut  oft' 
forever  from  his  sight.  Alark  the  result.  The  first  will,  of  which  I  am  now 
to  speak,  wrung  from  Air.  Smith  while  thus  under  surveillance,  bears  the  date 
of  August  13,  1S64,  two  months  prior  to  his  death.  By  this  will,  after  allow¬ 
ing  a  life-interest  in  one-third  to  his  wife,  one-half  the  entire  remaining  estate,  in¬ 
cluding  the  reversion  and  remainder  after  the  widow’s  decease,  was  given  out-  * 

right  to  his  son  Isaac.  This  would  have  proved  to  be  equivalent  to  perhaps  a 
quarter  of  a  million  dollars.  So  far  the  scheme  worked  well  for  Isaac.  But 
in  this  business  his  sister  Sarah  was  his  match.  In  a  short  time,  according  to 
her  sworn  testimony  in  the  Eliza  Smith  will  case,  tried  in  September,  1S76, 
she  procured  from  her  father  a  codicil  in  her  favor  for  a  large  amount,  it  seems, 


*3 


which  codicil,  as  she  affirmed  under  oath,  her  mother  dictated,  and  she  herself 
wrote.  Mrs.  Smith  had  meanwhile  secured  from  her  husband  a  codicil  giving 
her  the  fee  in  her  one-third,  instead  of  a  life-interest.  Thus  Isaac  was  check¬ 
mated.  Isaac’s  indignation  on  discovering  that  codicil  procured  by  Sarah  was 
great.  Ho  tried  to  destroy  it.  He  wrote  to  his  sister  Eliza,  begging  her  to 
destroy  it.  She  refused  to  do  it.  But  where  that  codicil  is  to-day  I  do  not 
know. 

And  now  Ebenezer  Smith  was  about  to  die.  Yet,  in  spite  of  this  forced 
will,  and  these  forced  codicils,  the  conspirators  were  not  content.  They  must 
have  a  new  deal,  and  must  be  quick  about  it,  or  life  would  be  extinct;  for  Mr. 
Smith  lay  in  the  last  stages  of  dropsy,  and  to  keep  him  up  he  was  dosed  with 
whiskey  as  a  dernier  resort.  I  would  forbear  to  go  into  the  details  of  this,  but 
it  is  my  imperative  duty  to  do  so. 

On  the  5th  of  October,  1864,  seven  days  before  his  father’s  death,  Isaac  went 
to  the  office  of  James  W.  Rollins,  Esq.,  then  at  No.  1  Devonshire  street,  Boston, 
and  urged  Mr.  Rollins  to  draft  a  will  for  his  father,  at  his  [Isaac’s]  dictation. 
Mr.  Rollins  rightly  preferred  written  instructions,  from  which  he  could  draw  so 
important  a  document  with  deliberation.  But  Isaac  was  imperative,  and  in  his 
pressing  haste,  or  from  ignorance,  even  failed  to  give  the  correct  names  of  these 
petitioners  —  the  Burtons  —  to  whom  he  was  gracious  enough  to  instruct  Mr. 
Rollins  to  allow  $500  apiece  ;  while  the  brother  and  sister  of  Mr.  Smith,  to¬ 
gether  with  his  nephews  and  nieces,  up  in  New  Hampshire,  ten  or  twelve  in 
all,  Isaac  coolly  threw  overboaad  altogether,  not  allowing  them  a  penny, 
though  they  were  all  remembered  in  the  former  will.  By  this  last  will,  the 
conspiritors  made  what  they  considered  a  more  equitable  division  for  themselves 
of  Mr.  Smith’s  estate.  The  will  drawn,  and  consented  to  by  Isaac’s  con¬ 
federates,  it  had  then  to  be  executed. 

On  the  morning  of  the  9th  or  10th  of  October,  so  far  as'  discovered,  this  will 
was  executed,  about  noon,  possibly  a  little  later,  of  the  9th  or  10th,  two  or  three 
days  before  Mr.  Smith’s  death,  though  the  will  itself  bears  date  the  5th.  Isaac 
himself  entered  his  father’s  sick-chamber  with  this  will.  Mr.  Ebenezer  Smith 
was  stretched  out  in  an  easy-chair  ;  he  was  in  a  comatose,  lethargic  state,  rap¬ 
idly  approaching  his  end,  his  mind  and  body  weakened  by  the  fatal  dropsy. 
His  precise  condition  will  be  more  fully  given  by  the  witnesses  we  are  to  call ; 
it  is  sufficient  now  to  say'that  Mr.  Smith  at  that  moment  was  wholly  unable  to 
comprehend  or  to  transact  any  business,  or  to  understand  even  the  reading  of  a 
paper.  Isaac  advanced  into  the  room,  followed  by  his  mother  and  his  sister 
Sarah  ;  his  sister  Eliza  was  also  there.  The  Burtons  were  not  there ,  nor  was 
any  one  there  acting  for  them.  Yet  the  Burtons  represented  a  quarter  part  of 
the  whole  estate,  after  deducting  a  third  for  the  widow.  Putting  his  hand  upon 
his  father’s  shoulder,  Isaac  tried  to  rouse  him,  telling  him  that  he  had  his  will 
for  him  to  sign.  The  dying  man  was  sufficiently  conscious  to  murmur  in  sur¬ 
prise,  “My  will!”  and  then  shaking  his  head,  according  to  the  testimony  of 
some,  said,  “No.”  A  moment  or  two  later  he  had  relapsed  into  a  semi-con¬ 
scious  state.  Isaac  then  commenced  to  read  the  will  to  his  father.  But  upon 


3 


H 


this  the  nurse,  Mrs.  Giles,  —  whose  testimony  I  shall  produce,  —  interposed, 
objecting  that  Mr.  Smith  was  wholly  unable  to  understand  what  was  read. 
Someone  then  said.  —  the  testimony  points  to  Sarah  as  the  one,  —  “We  are 
losing  time,”  or,  “  we  must  not  lose  time,”  or  words  to  that  effect.  Immediately 
Isaac  stepping  round  to  his  father’s  side,  took  his  father’s  hand  in  his,  and  wrote 
his  father’s  name  himself  upon  the  will.  That  spattered  signature  needs  no 
expert  to  stamp  it  as  a  forgery.  That  dying  man  knew  not  what  was  done. 
He  was  still  in  his  semi-conscious  state.  He  never  knew  and  understood  the 
contents  of  that  will,  nor  did  he  sign  it.  Within  three  days  he  died. 

Witnesses  were  needed,  and  a  messenger  had  been  despatched  meanwhile  to 
call  in  the  family  grocer  or  butcher  who  lived  hard  by  —  a  Mr.  Foster  —  who 
came  at  the  request.  Mr.  Foster  seemed  surprised  at  what  he  saw,  but  owing 
to  his  relations  with  the  family  —  who  were  his  customers  —  and  the  peculiar 
situation,  supposing  the  whole  family  to  be  there,  he  did  not  interfere,  but  signed 
his  name  as  a  witness  at  the  request  of  Isaac.  The  next  witness  was  the  nurse, 
Mrs.  Giles,  and  the  third  witness  was  Margaret  Patterson,  then  a  young  servant 
girl,  both  also  signing  at  the  request  of  Isaac.  Mr.  Foster,  before  leaving  the 
room,  endeavored  to  engage  in  conversation  with  Mr.  Smith,  but  received  no 
reply,  no  recognition  whatever.  Mr.  Foster  is  now  dead  ;  but  both  the  other 
witnesses  to  the  will  are  living,  and  are  to  testify  in  favor  of  the  petitioners. 
Thus  it  was  that  that  will  was  signed  and  that  forged  will,  never  executed  ac¬ 
cording  to  law,  was  admitted  to  probate  by  perjury,  somewhere,  and  under  it 
nearly  $500,000  have  been  accounted  for  ;  one  parcel  of  propertv  alone,  which 
the  executors  sold  for  $50,000,  is  now  assessed  for  more  than  half  a  million. 

But  a  few  words  more  and  this  opening  is  concluded.  The  wrong  done  the 
Burtons  by  the  other  members  of  the  family  troubled  Mrs.  Smith,  the  widow. 
She  was  afterward  more  than  once  heard  to  say  that  the  Burtons  had  been 
wronged,  and  that  she  would  make  it  right.  But  the  same  evil  agencies  — 
cupidity  and  intrigue  —  which  she  had  seen  at  work  upon  her  husband,  she 
found  herself  the  victim  of  when  her  end  was  near.  Her  wish  to  make  amends 
for  the  wrong  done  the  Burtons  was  foiled  by  the  very  parties  who  had  con¬ 
trolled  her  husband.  But  the  shocking  details  of  that  I  reserve  for  another  suit. 
Allow  me  here  to  state  that  Mr.  Smith,  well  knowing  the  characters  of  his 
family,  tried  hard  to  have  his  propertv  distributed  justly,  and  with  this  in  view 
he  put  about  nine-tenths,  if  not  all.  of  his  large  estate  in  trust,  to  pass  to  such 
persons  as  he  might  appoint,  and.  on  failure  to  appoint  them,  to  pass  to  his 
heirs,  no  matter  how  many  wills  they  wrung  from  him.  That  Mr.  Smith  had 
drawn  up  papers  disposing  of  his  propertv  in  accordance  with  these  trusts,  is 
known  from  the  fact  that  he  guarded  such  papers  as  long  as  his  strength  re¬ 
mained,  and  from  the  fact  of  his  grief  because  Edward  Bangs,  Esq.,  of  this 
city,  the  trustee  named,  was  then  in  Europe  at  that  time,  and  unable  to  receive 
the  papers  with  instructions.  Mr.  Bangs  returned  from  Europe  a  short  time 
after  Mr.  Smith’s  death,  but  these  papers  were  in  the  meantime  burned  up  by 
some  of  the  guilty  parties.  When  Eliza  told  her  mother  that  Dr.  Thorndike 


*5 

had  informed  her  that  the  papers  had  been  burnt,  the  only  reply  was,  “  What 
a  fool  that  man  is  to  tell  you  that !” 

And  now,  your  Honor,  these  petitioners,  the  Messrs.  Burton,  are  not  here 
with  the  heinous  design,  as  has  been  alleged,  of  blackmailing  the  defendants. 
Far  from  it.  They  can  justly  claim  their  full  share  of  this  estate.  Whether 
they  ever  recover  what  is  their  due,  or  not,  they  insist  upon  asking  this  Honorable 
court  to  set  aside  that  forged  will,  and,  that  done,  they  will  cheerfully  accept 
the  consequences.  Their  self-respect  and  respect  for  their  grandfather  was 
sufficient  to  compel  this  course  of  conduct.  These  young  gentlemen,  whose 
characters  are  above  reproach,  immediately  upon  the  discovery  of  these  facts 
two  years  ago,  commenced  a  thorough  investigation,  determined  to  bring  these 
wrong-doers  to  account.  That  grandfather,  who  loved  and  cared  for  them, 
they  now  feel  in  duty  bound  to  defend.  That  grandfather  who  died  without  a 
member  of  his  family  present  (a  stranger  closed  his  eyes) ,  now  finds  in  these 
two  grandsons,  children  of  a  beloved  and  loving  daughter,  the  sole  defenders  of 
his  honor,  his  name  and  his  wishes  ;  and  we  believe  that  if  we  can  prove  the 
facts  alleged,  as  we  think  we  can,  there  will  not  be  found  a  Christian  man  or 
woman  in  the  State  informed  on  this,  who  will  not  but  say,  The  Burtons  are  in 
the  right. 

And  now,  your  Honor,  I  have  covered  substantially  the  salient  points  in  this 
case.  The  facts  that  we  have  alleged  are  serious,  but  we  have  not  done  so 
without  feeling  that  we  had  the  proofs  back  of  them  to  sustain  them. 


i 


i6 


[The  following  argument  was  preceded  by  an  opening  argument  in  behalf  of  Mr.  Isaac  T. 
Smith,  which  is  not  here  printed,  in  the  course  of  which  the  particulars  in  regard  to  the  making 
and  execution  of  the  Will  were  related.] 


Opening  Argument  of  Wm.  H.  Drury,  Esq., 

Counsel  for  Dr.  W  m.  II.  Thorndike. 


JANUARY  i,  1879. 


May  it  please  your  Hono r  :  —  Probate  was  granted  by  this  Court,  Novem¬ 
ber  17,  1864,  in  favor  of  the  will  of  Ebenezer  Smith  dated  October  5,  1864; 
and  the  only  question  of  any  real  importance  raised  in  this  case  is  whether  or 
not  that  probate  was  procured  by  fraud.  But  the  opening  argument  of  the 
able  counsel  for  the  petitioners  is  the  old  powder-boat  petition  over  again,  on 
which  their  case  was  first  launched.  Charges  of  conspiracy,  forgery,  perjury, 
robbery,  poisoning,  intimidation,  force  and  every  kind  of  fraud  have  been  flip¬ 
pantly  and  presumptuously  thrown  about  here  and  elsewhere,  directed  against 
people  of  high  character  and  standing,  without  any  regard  to  propriet}',  rele¬ 
vancy  or  ability  to  prove  these  charges.  In  his  capacity  for  fiction  and  romance, 
and  I  may  say  for  pyrotechnics,  the  present  able  counsel  for  the  petitioners  has 
surpassed  even  the  illustrious  counsel  who  began,  and  afterwards  deserted  their 
worthless  cause. 

Mr.  Chandler  : — Did  he?  Mr.  Drury : — The  presumption  is  that  he  did. 
Mr.  Chandler:  —  You  can  draw  your  own  conclusions.  Air.  Drury:  —  I 
know  he  went  out  of  it.  He  is  not  in  it  here  now,  and  has  not  been  in  it  since 
a  certain  day.  Air.  Chandler :  —  That  is  apparent.  Mr.  Drury :  —  He  has 
succeeded  in  creating  a  public  sensation,  but  it  has  been  at  the  expense  of  giving 
this  Court  an  opportunity  to  see  his  inability  to  sustain  any  of  the  statements 
he  has  made,  by  any  evidence  entitled  to  credit,  and  to  learn  the  worthless  and 
unreliable  character  of  the  four  principal  witnesses  upon  whom  he  has  relied, 
whose  testimony  has  any  bearing  whatever  upon  the  case. 

Now,  if  your  Honor  please,  my  desire  is  not  so  much  to  gratify  the  public 
through  the  newspapers,  as  to  obtain  the  favorable  judgment  of  this  Court,  and 
I  shall  content  myself  with  soberly  presenting  our  side  of  the  case  to  your 
Honor,  stating  only  what  can  be  proved  by  credible  evidence,  and  setting  up 
only  such  defences  as  the  law  has  given  us. 


We  need  not  have  gone  to  trial  here.  We  could  have  avoided  it,  if  we  had 
chosen  to  avail  ourselves  of  all  our  legal  rights,  but  we  preferred  to  go  to  trial 
now,  before  death  and  destruction  have  removed  all  the  evidence,  a  great  part 
of  which  has  already  been  lost,  by  which  these  slanders  can  be  completely 
refuted.  And  we  welcome  the  opportunity  which  is  now  given  us  to  show  to 
the  satisfaction  of  a  court  of  justice,  in  which  a  lie  has  not  such  vitality  as  it 
has  in  public  rumor,  the  baseless  falsehood  of  the  slanders  which  have  been 
uttered.  We  have  to  carry  ourselves  back,  sir,  as  well  as  we  can,  14  years, 
and  view  matters  from  that  standpoint ;  and  the  difficulties  are  apparent  at 
once,  because  we  know  from  our  own  inward  experience,  and  from  our 
experience  in  the  course  of  this  trial,  that  it  is  impossible  to  derive,  from  the 
memory  of  witnesses  alone,  the  complete  details  of  transactions  of  a  time  so 
remote. 

The  principal  consideration  which  led  to  the  establishment  of  the  will  of 
October  5,  1S64,  the  will  in  question,  was  that  in  its  general  aspect  it  was 
found  to  be  consistent  with  two  prior  wills  and  codicils,  and  that  nobody 
adverse  to  it  could  gain  anything,  and  especially  the  Burtons  could  gain  nothing, 
by  having  it  set  aside.  And  the  same  considerations,  after  this  long  lapse  of 
time,  and  after  the  estate  has  been  settled,  will  have  far  greater  weight  now 
than  it  had  then,  not  only  in  favor  of  the  validity  of  the  will,  but  also  in  favor 
of  the  stability  of  property  and  against  the  unsettling  of  that  estate.  I  have 
therefore  prepared  a  statement  which  I  now  present  to  the  court,  showing  in  a 
concise  form  and  at  a  glance,  the  provisions  of  the  different  ^testamentary  in¬ 
struments  of  Ebenezer  Smith,  existing  at  his  death,  October  12,  1S64.  [See 
Statement,  pages  18  &  19.] 

The  first  will  of  which  we  have  any  positive  knowledge,  was  the  will  of 
May  2,  1859.  It  was  drawn  in  the  office  of  William  Minot,  who  is  now  dead, 
a  lawyer  of  large  experience  in  regard  to  all  matters  relatiug  to  wills,  and  a 
lawyer  of  high  character.  It  was  executed  in  the  office  of  William  Minot,  the 
*  other  witnesses  to  that  will  besides  Mr.  Minot  being  persons  who  were  em¬ 
ployed  in  his  office.  It  was  made  when  Ebenezer  Smith  was  in  the  undoubted 
possession  of  his  faculties,  and  was  managing  an  extensive  business.  He  gives 
the  Burtons  in  that  will  $500  each  ;  gives  his  wife  the  income  for  life  of  a 
third,  and  certain  personal  property  absolutely ;  gives  to  Isaac  one-third,  Eliza 
W.  one-third,  and  Sarah  W.  one-third,  of  the  residue.  At  that  time  Eliza  W. 
and  Isaac  were  probably  indebted  to  their  father,  because  the  will  says  that  the 
debts  diie  from  them  are  to  be  deducted  from  their  shares, — nothing  said  about 
the  debts  due  from  Sarah,  because  there  were  none.  A  few  days  afterwards, 
on  May  16,  1859,  ^ias  occasion  to  consider  his  will  again,  and  his  son  George 
Alexander  having  died,  to  show  the  regard  which  he  had  for  his  grandchildren, 
if  he  had  any  in  that  branch  of  the  family,  he  gives  them  $5  each.  In  other 
respects  he  ratifies  and  confirms  his  will,  leaving  the  Burtons  $500  still.  And 
the  witnesses  to  that  were  William  Minot,  Eleazer  S.  Porter  and  Luther 
L.  White,  the  same  as  the  witnesses  to  the  will.  That  codicil,  also,  was  drawn 
in  the  office  of  William  Minot.  This  was  his  will  down  to  1S64. 


Statement  showing  the  provisions  of  the  different  Testamentary  Instruments  of  Ebenezer  Smith,  existing 

at  his  death,  Oct.  12,  1864. 


18 


s 

**• 

2 

■8 

V 

•5 

h 

O 

Will  of  Oct  5,  1S64. 

All  furniture  and  sil¬ 

ver-  plate,  and  his  inter¬ 
est  in  property  standing 
in  her  name. 

Also  J  of  residue  after 

payment  of  debts  and 

legacies. 

8 

0 

V 

be 

C! 

rt 

u 

rj 

y 

8 

vo 

■#> 

J  of  rest  of  property 

in  foe. 

&  of  rest  of  property 

in  fee- 

*5 

•m 

W 

* 

s 

* 

1 

* 

8 

, 

Codicil  of 
October  i.  1864. 

** 

Codicil  of 
September  2,  1864. 

In  lieu  of  provision  in 
will,  gives  her  in  fee,  £ 

of  property  left  after 

payment  of  debts. 

Also,  furniture  and 
silver-ware,  and  his  in¬ 

terest  in  property  stand¬ 
ing  in  her  name. 

< 

W 

Will  of  Aug.  13,  1864. 

$300  each. 

A 

y 

rt 

y 

0 

VO  N 

& 

$75  each. 

$100  in  trust. 

$100 

$100  in  trust. 

Same  as  in  will  of 
May  2,  1859. 

8 

A 

0 

rt 

y 

a 

In  fee  \  of  residue,  and 

^  reversion  of  property 

given  to  wife  for  life. 

In  trust  for  her  4  of 

said  residue  and  rever’n 

!  1 - 

*• 

i  **• 

V) 

•* 

:  1 

i  ■« 

M 

S 

« 

<?* 

m 

«* 

•w 

fci 

« 

Codicil  of 

May  16,  1839. 

* 

Geo.  Alex’r  having 

died,  gives  his  children, 

if  any,  $5  each. 

H 

Will  of  May  3,  1859. 

A 

u 

a 

y 

8 

JS 

0 

03 

O 

0  d 

vo  vo 

$800  in  trust  for  them 
and  survivors  of  them. 

$200  and  annuity  of 

$100. 

Furniture  and  other 

articles  in  house,  except 

phonographic  and  pho¬ 
netic  library  and  diary. 
Also,  income  for  life,  of, 
\  of  property  left  after 
payment  of  debts. 

$100. 

Testator's  interest  in 
house  in  Winchester,  in 
which  Geo.  Alex,  re¬ 
sides,  for  life,  and  an¬ 
nuity  of  $400. 

eS 

Uh 

O 

<U 

be 

rt 

u 

CJ 

y 

a 

£  of  residue  and  re¬ 

mainder  in  fee. 

£  of  residue  and  re¬ 

mainder  in  trust. 

i* 

*  1 
i  *5 

•• 

a  * 

•«*  *) 

?  * 

^  %• 

•» 

*»»  2 

1  - 

1  * 

Sara’l  and  Sally  Smith, 
bro,  and  sister. 

Esthei,  Catherine,  Noah, 
John  and  Mary,  children  of 

bro.  Samuel. 

Widow  and  children  of 
nephew  Eli  Smith. 

Asineth,  Eliza,  Elmira, 
and  Sarah  Ann,  daughters 

of  bro.  Samuel. 

- - - 

Phcebe  Seaver,  niece. 

Zachariah  Seaver. 
Ebenezer  Seaver. 
Charlotte  Seaver. 

Eliza  Smith,  wife. 

Ebenezer  Smith,  son,  if 
living. 

Geo.  Alex.  Smith,  son. 

Ilazcn  J.  Burton,  Jr.,  and 

Geo.  S.  Burton,  grandsons. 

Isaac  T.  Smith,  son. 

Eliza  W.  Smith,  (orl 

Gen),  daughter. 

II 

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20 


In  July  of  that  year  he  determined  to  make  a  new  will,  and  he  copied  out  in 
his  own  handwriting, — which  has  fortunately  been  preserved, — in  his  own 
handwriting  I  say,  both  the  will  of  May  2,  and  the  codicil  of  May  16,  1859  ; 
and  in  his  own  handwriting,  which  we  have,  and  which  we  have  already 
shown  to  the  court,  he  prepared  a  draft  of  a  new  will,  came  up  to  the  same 
William  Minot,  and  that  will  of  August  13,  1864,  was  prepared  in  the  office  of 
William  Minot,  and  appears  here  in  this  court,  in  the  handwriting  of  Aloodv 
Merrill,  who  was  at  that  time  in  Mr.  Minot’s  office,  and  who  remembers  the 
execution  of  it.  And  that  will  also  was  executed  and  witnessed  in  the  office  of 
William  Minot,  and  varies  from  the  will  of  1859  only,  substantially,  with  re¬ 
spect  to  Isaac,  Eliza  W.  and  Sarah.  It  gives  to  the  Burtons,  still,  $500  each, 
to  his  son  Ebenezer,  if  living,  $100,  diminishes  the  legacies  to  other  relatives, 
and  appoints  Isaac  one  of  the  trustees  and  executors,  together  with  William 
Alinot.  Jr.,  and  Edward  Bangs.  In  the  following  month  he  has  occasion  to 
consider  his  will  again.  The  difficulties  with  his  wife,  towards  the  last  of  his 
life  softened  and  he  determines  to  revoke  the  provision  made  in  his  will  for  his 
wife,  and  gives  her  in  fee  one-third  of  his  property  left  after  the  payment  of  his 
debts,  also  his  furniture  and  silver  ware  and  his  interest  in  property  standing 
in  her  name.  And  that  codicil  of  September  2,  1864,  is  in  the  handwriting  of 
that  same  old  William  Alinot,  and  appears  here  in  court,  and  is  witnessed  by 
the  Rev.  Rollin  H.  Neale,  Mary  P.  Roberts  and  Alargaret  Patterson  ;  and  the 
latter  has  already  testified  to  the  circumstances  under  which  she  appended  her 
name  as  a  witness  to  that  codicil.  On  the  1st  of  October,  1864,  he  again  con¬ 
siders  his  will,  and  decides  to  give  his  daughter  Sarah  one-third  of  the  residue, 
after  setting  aside  the  portion  for  his  wife,  and  appoints  her  husband  Dr.  Wm. 
H.  Thorndike,  one  of  the  executors  and  trustees,  in  place  of  Edward  Bangs ; 
and  this  is  witnessed  by  three  worthy  people,  James  Wight,  Airs.  James  Wight 
and  Mary  P.  Roberts.  James  Wight  is  fortunately  alive, — his  wife  and  his  wife’s 
sister  having  died  last  September  and  October, — and  he  has  appeared  upon  the 
stand,  and  you  have  heard  from  him,  an  unprejudiced  witness,  the  relation  of 
the  circumstances  under  which  that  codicil  was  signed  and  executed. 

So  far  the  testator  has  left  the  Burtons  $500  each.  And  we  now  come  to  the 
will  of  October  5,  1S64,  which  gives  to  his  wife  substantially  the  same  as  the 
prior  will  and  codicils, — only  he  gives  her  a  few  hundred  dollars  less. 

Mr.  Chatidler  :  Excuse  me.  Didyousayin  whose  handwriting  the  codicil 
of  October  istwas? 

Mr.  Dr?/ry  :  That  was  written  by  Paul  Willard.  He  gives  to  his  wife  and 
to  his  daughter  Sarah  substantially  the  same  that  he  gave  them  in  the  prior  will 
and  codicils,  only  he  gives  his  wife  about  $333  less,  and  his  daughter  Sarah  about 
$222  less  ;  he  gives  to  his  son  Ebenezer,  if  living,  the  same  as  he  had  previous¬ 
ly  given  him  ;  and,  he  gives  the  Burtons  just  the  same — $500  each.  The  only 
change  he  makes  of  any  great  importance  is  in  regard  to  Isaac  and  Eliza.  Eli¬ 
za,  as  the  estate  turned  out,  gets  $17,675  41  more  than  the  prior  will  and  codi¬ 
cils  gave  her;  Isaac  gets  $15,794  ^5  less ;  and  certain  legatees,  relatives  who 
were  not  heirs  at  law,  lost  by  the  last  will  $1325.  Everybody  except  the  Bur- 


21 


tons  ancl  Eliza  lost  by  the  last  will.  It  gives  the  Bartons  just  the  same.  Eliza 
is  the  only  person  who  gains  by  it ;  and  she  gains  at  the  expense  of  all  others, — 
at  the  expense  chiefly  of  her  brother  Isaac.  And  the  testator  appoints  William 
Minot,  Jr.,  Isaac  T.  Smith  and  William  H.  Thorndike,  the  same  persons  as 
provided  in  the  prior  will  and  codicils,  as  executors.  This  is  witnessed  by  An- 
drix  A.  Foster,  of  whose  character  I  shall  speak  hereafter,  who  is  now  dead, 
Anna  G.  Giles  and  Margaret  Patterson,  who  have  already  testified.  And  this 
same  statement  also  contains  a  comparison  of  the  effect  between  the  last  will 
and  the  prior  will  and  two  codicils. 

Now  as  we  can  show  you,  neither  Isaac,  nor  the  widow,  nor  Sarah,  were  ea¬ 
ger  to  support  this  last  will  and  have  it  setup  ; — it  was  an  injury  to  them.  When 
objection  was  made  to  it,  they  would  have  been  glad  to  have  withdrawn  it  and 
had  it  out  of  the  way.  The  old  lady  preferred  the  prior  will  and  codicils,  and 
the  only  persons  who  did  not  prefer  the  prior  will  and  codicils  were  Eliza  and 
the  Burtons  ; — they  thought  they  could  squeeze  out  something  by  throwing  sus¬ 
picion  upon  this  last  will,  and  availing  themselves  of  some  false  story  about  it, 
which  was  then  hatched  up  by  Eliza  W.,  who  got  that  nurse,  Mrs.  Giles,  into 
her  hands  soon  after  her  father’s  death. 

It  was  only  by  great  effort  on  the  part  of  Dr.  Thorndike,  that  old  Eliza  Smith 
could  be  brought  to  making  any  compromise  about  the  will.  She  knew  she  was 
right,  and  she  was  the  last  woman  that  could  be  turned  away  from  what  was 
right, — what  she  believed  her  legal  rights  were.  None  of  these  parties  who  have 
been  accused  were  eager  to  set  up  the  last  will,  because  it  would  have  been  for 
their  interest  to  have  it  set  aside,  and  they  went  for  it,  and  it  was  set  up,  because 
it  was  determined  by  this  court,  upon  both  wills  being  presented,  that  the 
will  of  October  5th  was  the  last  valid  will  and  testament  of  Ebenezer  Smith. 

Mr.  Chandler :  Did  you  say  Sarah’s  codicil  was  presented  then? 

Mr.  Drury:  The  reason  why  Sarah’s  codicil  was  not  presented,  was,  that 
the  counsel  for  the  executors  decided  that  it  would  be  better  to  put  the  prior 
will  into  the  Probate  Court  at  the  same  time,  and  carry  it  up  to  the  Supreme 
Court  at  the  same  time,  with  the  last  will,  and  nobody  could  do  that  so  con¬ 
veniently  as  Edward  Bangs.  But  Edward  Bangs  was  cut  out  by  the  last  codi¬ 
cil  as  executor,  and  he  could  not  petition  for  letters  testamentary  to  himself,  if 
he  put  in  the  codicil  of  October  1st.  So  the  lawyers  decided  that  Bangs  had 
better  offer  that  will  for  probate  with  only  the  first  codicil,  and  that  after  they 
should  get  up  into  the  Supreme  Court,  they  would  present  a  petition  there  to 
be  allowed  to  prove  the  second  codicil ;  and  I  have  the  {petition,  signed  by 
Edward  D.  Sohier  and  Paul  Willard,  which  was  prepared  for  that  purpose,  to 
be  presented  in  the  Supreme  Court  at  the  same  time  when  the  other  testa¬ 
mentary  papers  should  come  to  be  considered  ;  and  that  is  the  reason  why  the 
codicil  of  Sarah  does  not  appear  among  the  records  in  this  court, — by  the  ad¬ 
vice  of  counsel,  to  enable  Edward  Bangs  to  offer  that  prior  will  for  probate. 

If  your  Honor  please,  the  gentleman  who  has  just  preceded  me  has  stated 
some  of  the  parties  who  are  represented  here,  but  there  is  one  party  whom  he 
left  out,  whom  we  on  this  side  represent.  We  represent  Ebenezer  Smith. 
4 


22 


We  stand  here  to  sustain  his  right  to  dispose  of  his  property  as  he  saw  fit. 
Nobody  complains  except  these  Burtons,  and  we  show  you  that  through  the 
last  years  of  his  life  the  testator  made  at  least,  before  this  will,  two  valid  dispo¬ 
sitions  of  his  property,  and  gave  them  $500  each,  and  if  they  were  defrauded 
by  anybody,  it  was  by  Ebenezer  Smith,  who  had  the  right  to  give  them  what  he 
saw  fit  to  give  them, — what  the  law  gave  him  a  right  to  do.  Before  that  will 
of  October  5th,  there  was  substantially  this  same  testimentary  disposition  in 
regard  to  his  wife  Eliza  Smith,  and  I  represent  Eliza  Smith  and  her  right  to 
receive  the  property  which  her  husband  gave  her,  and  to  transmit  that  property 
as  she  might  see  fit  afterwards.  Before  that  will  of  October  5th  there  was  sub¬ 
stantially  this  same  disposition  in  regard  to  his  daughter  Sarah,  and  I  represent 
her  and  her  right  to  receive  the  property  which  her  father  gave  her  and*  to 
transmit  that  property  to  her  husband,  who  is  now  my  client,  and  to  her  chil¬ 
dren,  one  of  whom  is  now  of  age  and  three  of  whom  are  minors,  but  who 
have  not  even  received  the  respect  of  legal  notice  of  these  proceedings,  although 
they  are  the  persons  principally  interested  in  these  proceedings. 

Mr.  Chandler:  It  has  been  published.  Mr.  Drury:  And  they  are 
principally  interested  through  their  grandmother,  Eliza  Smith,  who,  in  her  will, 
gave  to  them  the  bulk  of  her  property. 

Isaac  Smith  is  represented  by  my  brother  Loring ;  and  he  stands  here  to  up¬ 
hold  the  will  which  greatly  injured  him. 

Eliza  W.,  if  she  is  represented  by  anybody,  is  represented  by  the  counsel 
for  the  petitioners.  This  will  benefited  her,  as  the  estate  turned  out,  to  the 
extent  of  over  $17,000,  and  she  appears  here  to  break  it. 

Now,  your  Honor,  I  have  dwelt  upon  these  prior  wills  because  they  throw  a 
great  deal  of  light  upon  the  last,  and  they  negative  the  idea  of  fraud  ;  and  you 
can  read  the  action  of  the  testator’s  mind  from  1S59  down  through  the  wills  and 
codicils  of  1S64,  and  down  to  the  last  will,  and  we  see  there  the  exhibition  of  a 
constant  purpose  in  regard  to  his  son  Ebenezer  and  his  grandchildren  the  Bur¬ 
tons,  a  constant  purpose  to  diminish  the  legacies  to  other  relatives  outside  the 
immediate  family,  and  a  constant  purpose  to  regard  his  wife,  Isaac,  Sarah  and 
Eliza  W.  as  the  principal  objects  of  his  bounty, — and  the  only  variation  as  to 
them  is  as  to  the  proportions  in  which  he  gives  to  them.  Here  in  the  codicil 
of  September  2  he  is  determined  to  be  more  just  to  his  wife;  here  in  the 
codicil  of  October  1  he  brings  his  daughter  to  an  equality  ;  here  in  the  will  of 
October  5  he  brings  the  three  children  to  an  equality  and  back  to  where  they 
were  in  1S59.  Now  this  is  all  inconsistent  with  fraud,  and  is  consistent  only 
with  the  genuineness  of  this  last  will — his  most  reasonable  will ;  and  I  say 
from  internal  evidence,  the  testamentary  history  of  the  man,  and  on  its  face, 
this  last  will  is  the  most  reasonable  will,  taken  as  a  whole,  that  he  ever  made. 
On  its  face,  I  say.  I  dont  say  it  was  really,  because  Eliza  W.  had  already  sucked 
out  of  her  father  a  large  share  of  his  fortune,  and  if  she  had  received  what  the 
will  of  August  gave  her,  she  would  even  then  have  received  more  than  her  just 
share  of  his  estate.  She  was  a  spendthrift,  a  vain,  extravagant  woman,  and  it 
made  no  difference  whether  she  received  little  or  much,  she  was  sure  to  squan- 


23 


der  it  if  she  received  it,  and  it  would  have  been  more  just,  perhaps,  consider¬ 
ing  the  circumstances,  to  have  let  the  disposition  remain  as  the  will  of  August 
and  its  codicils  left  it ;  but  there  were  no  reasons  why  the  testator’s  daughter 
Sarah,  who  never  had  called  upon  her  father  for  money,  who  had  never  been 
assisted  by  him,  should  have  been  reduced  below  the  third  ;  and  there  was  good 
reason  why  more  than  a  third  should  go  to  his  favorite  son,  who  had  been  a 
credit  to  his  name,  and  the  only  one  who  bore  the  name  of  Smith,  who  had 
been  a  pride  to  his  father. 

I  speak  now  of  that  as  the  internal  evidence.  If  your  Honor  looks  at  the  last 
will,  I  call  attention  in  the  first  place  to  the  appearance  of  the  signature  to  that 
will.  It  was  the  same  fourteen  years  ago  that  it  is  to-day.  Any  lawyer  would 
have  noticed  it  at  that  time.  It  has  not  been  changed  since.  Age  has  not 
affected  the  appearance  of  that  signature,  and  it  was  just  the  same  fourteen 
years  ago  as  it  is  to-day,  such  as  to  excite  anybody’s  inquiry,  and  it  is  an  insult 
to  any  lawyer  to  suppose  that  it  did  not  excite  his  inquiry,  and  that  he  did  not 
investigate  the  circumstances  which  led  to  that  peculiar  appearance. 

When  this  will  came  before  this  court  fourteen  years  ago,  the  presumption  is 
that  the  essential  facts  necessary  to  establish  it  as  a  valid  will  were  proved, — 
the  testator’s  knowledge  of  its  contents,  that  he  was  of  sound  mind,  that  it  was 
signed  by  him,  or  by  his  direction  in  his  presence,  attested  in  his  presence  by 
three  witnesses,  and  legally  declared  to  be  his  last  will.  Now  it  is  not  incum¬ 
bent  upon  us  to  show  that  this  was  established  at  that  time  ;  but  the  burden  is 
upon  these  petitioners  to  show  that  those  facts  were  not  established.  And  I 
candidly  ask  your  Honor,  looking  over  the  evidence  which  has  already  gone 
in,  if  they  have  shown  one  particle  of  evidence  yet  bearing  upon  any  one  of 
those  points  ; — one  particle  of  evidence,  in  all  the  testimony  of  many  days 
which  has  already  gone  in,  upon  the  very  points  which  it  is  incumbent  upon 
them  to  show.  Not  one  particle  !  And  they  must  not  only  show  an  omission 
of  testimony,  but  a  fraudulent  concealment,  and  there  is  no  evidence  bearing 
upon  it.  But,  your  Honor,  we  propose  to  go  further  than  the  law  requires  us 
to  go,  and  we  shall  prove  all  that  would  be  necessary  to  establish  de  novo  the 
will  of  October  5th  as  the  last  will  and  testament  of  Ebenezer  Smith,  and  a 
valid  disposition  of  his  property.  And  here,  perhaps,  is  the  best  point  for  a 
consideration  of  the  testimony  of  Mrs.  Giles. 

Her  testimony  is  false.  My  brother  thinks  she  is  mistaken.  I  do  not.  I  do 
not  credit  her  with  honesty  myself.  But  whether  she  is  honest  or  dishonest, 
her  testimony  is  false.  We  can  prove  it  to  be  so,  conclusively,— as  to 
the  proceedings  which  took  place  at  the  Probate  Court  fourteen  j^ears  ago  ; 
second,  as  to  the  date  of  the  execution  of  the  will ;  third,  as  to  Ebenezer 
Smith’s  mental  condition  at  the  time  of  the  execution  of  the  will ;  and  fourth, 
as  to  the  proceedings  which  took  place  at  the  time  of  the  execution  of  the  will, 
and  prior  thereto,  and  subsequently  thereto.  Now,  first,  in  regard  to  the  probate 
proceedings  in  this  court.  That  is  important ;  and  I  have  noticed  that  your 
Honor  has  regarded  that  as  a  vital  point  in  this  case.  That  witness,  Mrs. 
Giles,  undertook  to  remember  positively  the  questions  which  were  asked  her, 


24 


and  the  questions  which  were  not  asked  her,  fourteen  years  ago.  She  was  so 
rash  as  to  say  she  could  remember  that  a  certain  list  of  questions,  which  I  put 
to  her,  were  not  asked  her,  and  that  certain  questions  were  asked  her,  fourteen 
years  ago.  Well,  now  we  know,  your  Honor,  that  that  is  impossible,  and  a 
witness  who  will  do  that  from  pure  memory,  or  pretend  to  say  it  from  pure 
memory,  utters  what  is  false.  Now,  if  your  Honor  please,  it  is  very  fortunate, 
very  fortunate,  that  we  have  the  minutes  of  the  proceedings  of  the  Probate 
Court.  And  it  is  very  curious — the  source  from  which  those  minutes  came  ; — 
they  came  from  an  adversary, — from  the  hands  of  the  enemy,  in  the  hand¬ 
writing  of  Thomas  P.  Smith,  the  son  of  Eliza  W.  Smith,  who  appeared  here 
fourteen  years  ago  in  this  court  as  an  attorney  in  behalf  of  himself,  and  who  after¬ 
wards  took  an  appeal  from  the  decree  of  this  court ; — and  they  show  upon  their 
face  that  they  are  the  minutes  of  the  Probate  Court  of  November  17th,  1S64; 
that  Andrix  A.  Foster  was  examined  ;  that  a  long  series  of  cross-interrogatories — 
15  cross-interrogatories — were  propounded  to  him,  and  among  those  interroga¬ 
tories  were  these  :  “  Was  Air.  Smith  able  to  sign  it?”  “  Did  Isaac  move  his 

hand  ?”  “  Did  he  ask  Isaac  to  help  him  ?  ”  “  Did  he  attempt  to  write  himself?” 

“  Who  put  the  pen  in  his  hand  ?”  “  Did  he  move  his  hand  towards  the  paper?” 

Those  questions  were  asked  to  Andrix  A.  Foster, — cross-interrogatories. 

Next  came  Alargaret  Patterson.  The  minutes  show  that  she  was  sworn. 
She  was  asked  if  she  saw  him  sign  it,  and  who  requested  him  to  sign  it ; 
whether  Ebenezer  Smith  said  anything ;' whether  he  heard  what  Isaac  said; 
how  he  signed  it;  ‘‘Did  he  talk  with  his  children?”  “Was  it  all  said  in  his 
presence?”  “What  was  his  condition  ?”  “Did  he  move  his  hand ?”  “Where 
were  you?”  “Did  he  speak  to  Eliza?”  And  here  is  a  long  list, — those 
minutes  show  that  a  long  list  of  questions  were  put  to  Airs.  Giles.  The  very 
questions  were  put  to  her  which  she  solemnly  denied  were  put  to  her,  and  pre¬ 
tended  to  remember  were  not  put  to  her,  at  that  time  :  “Did  you  see  Air. 
Smith  sign  that?”  “Were  you  requested  to  sign  it  as  his  will?”  And  the  fact 
of  her  objecting  to  the  reading  of  the  will  came  out  in  reply  to  the  Judge  of 
Probate.  “Did  any  one  else  express  their  satisfaction?”  “Airs.  Thorndike 
and  Airs.  Gen  did.”  “  Airs.  Smith,”  she  testified,  “and  the  family  agreed  upon 
the  will  with  Ebenezer  Smith.”  “Where  did  she  sign  it?”  “Who  took  the 
paper  from  the  board?”  “Did  you  hear  him  make  any  declaration?”  “What 
did  Airs.  Gen  say?”  “I  am  here,  father;  all  is  harmonious.”  She  then  said — 
“  I  thought  that  he  was  so  weak  he  could  not  understand  a  word  of  it.”  The 
minutes  show  it.  “Are  you  of  the  same  opinion  now?”  She  said — “Yes.” 
“Dr.  Thorndike  was  attending  him.”  “Where  did  you  first  see  this  paper?” 
(Question  by  the  Judge).  Then  here  is  a  list  of  questions  by  Mr.  Woodbury  : 
“When  did  Dr.  Thorndike  apply  to  you?”  “Were  you  present  during  the 
whole  time  of  completing?”  “  How  long  from  the  time  of  your  objecting  to 
the  signing?”  “After  Dr.  Lewis  visited  him  that  morning?”  “Yes.”  “Who 
was  assisting  him  then?”  Then  Air.  Hazelton,  counsel  of  Arthur  G.  Smith: 
“What  relation  is  Dr.  Thorndike?”  “Did  he  know  you  signed  as  witnesses?” 
“Did  he  say  anything,  or  indicate  that  he  knew  you  were  signing  as  witnesses?” 


25 


“  How  long  were  you  present,”  says  the  Judge,  “  the  whole  time  from  that  of 
bringing  in  to  the  completion?”  “Yes.”  Then  Dwight  Foster,  at  that  time 
counsel  for  the  Burtons,  who,  they  swore,  was  not  here,  put  this  cross-interrog¬ 
atory,  the  only  interrogatory  which  appears  to  have  heen  put  by  him  :  “After 
Mr.  Isaac  Smith  had  guided  Mr.  Smith’s  hand,  did  Mr.  Smith  ask  what  that 
was?”  “  I  should  not  like  to  say  positively  if  it  was  before  or  after,  but  I  think 
Mr.  Smith  asked  what  that  paper  was,  and  Mr.  Isaac  or  Mrs.  Ebenezer  says, 

‘  It  is  your  will.’  ” 

So  this  pretence  that  all  these  matters  have  been  discovered  now  for  the  first 
time  is  annihilated  by  the  traces  which  were  left  fourteen  years  ago  by  the  son 
of  that  very  woman  who  has  built  up  this  monstrous  charge  against  her  mother, 
her  brother  and  her  sister.  And  in  the  course  of  my  statement,  I  will  show 
that  we  have  other  evidence  as  to  the  proceedings  in  the  Probate  Court,  in  the 
writing  of  Edward  D.  Sohier,  a  witness  not  of  any  doubtful  character  or 
reputation. 

The  date  of  the  execution  of  the  will  of  October  5th  is  very  important  as 
bearing  upon  the  testator’s  mental  condition,  and  this  has  been  recognized  by 
the  counsel  for  the  petitioners.  It  has  been  very  important  for  him  to  establish 
that  it  was  dated  back  and  was  executed  on  the  9th  or  10th  of  October,  when 
the  man  was  almost  dead.  They  have  recognized  the  importance  of  that,  and 
they  have  dwelt  upon  it.  And  fortunately  we  have  seven  independent  sources 
of  testimony  bearing  upon  the  date  of  the  execution  of  that  will.  1.  The  date 
of  the  will  itself.  2.  It  was  written  on  the  5th  day  of  October,  and  Isaac  re¬ 
members  that  he  took  it  immediately  from  the  office  of  Mr.  Rollins,  who  wrote 
it,  up  to  the  house,  and  it  was  executed  on  the  same  day.  3.  Mrs.  Giles  herself 
said  fourteen  years  ago,  and  Mr.  Sohier  put  it  down, — “  I  went  to  Mr.  Smith’s 
the  night  before  the  will  was  signed.”  And  she  went  there  on  the  4th  ;  that 
fixes  the  date  on  the  5th.  4.  Dr.  Lewis  called  October  5th,  and  the  minutes 
of  the  Probate  Court  show  that  Anna  G.  Giles  testified  that  the  will  was  exe¬ 
cuted  that  day.  5.  Dr.  Thorndike  remembers  the  date  with  reference  to  the 
execution  of  the  codicil  of  October  1st,  which  was  Saturday,  and  he  remembers 
that  the  execution  of  this  will  took  place  on  the  following  Wednesday.  6.  The 
Doctor  remembers  also  when  Isaac  came.  He  came  the  next  morning  after 
that  codicil  of  October  1st  was  signed,  and  he  left  on  the  night  of  the  day  on 
which  the  will  was  executed,  Wednesday,  October  5th,  and  was  absent  from 
Boston  during  all  the  rest  of  his  father’s  life,  and  did  not  arrive  here  again 
until  the  morning  of  the  12th  of  October.  And  (7)  finally,  conclusively,  the 
Bank  records  in  New  York  show  that  Isaac  was  in  New  York  from  the  6th  to 
the  nth  inclusive.  He  could  not  have  been  here  to  see  the  will  executed  on 
any  day  later  than  October  5th.  Can  they  break  through  that  evidence  as  to 
the  date  of  the  execution  of  the  will?  With  their  failure  to  establish  it  on  any 
other  date  than  the  5th,  their  case  is  gone. 

Now,  the  testimony  of  Mrs.  Giles  is  false,  and  we  will  show  it  so,  as  to  the 
mental  condition  of  Ebenezer  Smith  at  the  time  the  will  was  executed, — for 
according  to  her  own  testimony,  she  gives  the  lie  to  herself.  If  it  was  executed 


26 


on  October  5th,  his  mind  was  very  clear.  She  relates  the  conversation  of 
Ebenezer  Smith.  His  memory  goes  away  back  to  the  time  when  he  was  a 
boy  ;  he  tells  how  he  came  to  Boston  ;  he  carries  his  mind  away  back  to  his 
boyhood — an  old  man  at  that  time  78  years  of  age  ; — and  a  great  deal  of  conver¬ 
sation  as  to  those  former  days  takes  place  up  to  the  time  of  the  consultation  of 
the  physicians,  on  October  8th,  all  of  which  gives  the  lie  to  herself,  if  the  will 
was  executed  on  the  5th.  And  secondly,  the  statement  which  she  made,  and 
which  Mr.  Sohier  took  down,  and  which  I  shall  again  refer  to  and  read,  shows 
more  mind  than  she  gave  him  the  credit  of  having  when  she  testified  fourteen 
years  ago,  and  infinitely  more  mind  than  she  now  gives  him  the  credit  of  having 
had  at  that  time.  And  then,  thirdly,  upon  that  point  of  mental  condition  is 
Dr.  Storer’s  testimony,  that  on  the  8th  of  October  he  saw  Ebenezer  Smith,  three 
days  after  the  will  was  signed,  and  Mr.  Smith  talked  about  his  younger  days, 
when  they  were  Odd  Fellows  together,  and  his  mind,  Dr.  Storer  said,  appeared 
then  as  clear  as  it  ever  had  been.  The  fourth  is  the  testimony  of  Miss  Patter¬ 
son,  one  of  the  attesting  witnesses,  who  has  always  been  of  the  opinion  that  he 
was  of  sound  mind  and  understood  what  he  was  doing.  Fifth,  the  testimony  of 
Andrix  A.  Foster,  which  Mr.  Sohier  remembers,  and  which  he  will,  relate 
which  was  uttered  here  fourteen  years  ago,  to  the  effect  that  Mr.  Foster,  real¬ 
izing  to  the  full  extent  the  importance  of  the  act  which  he  was  called  upon  to 
perform,  took  particular  pains  to  satisfy  himself  that  the  man  whose  will  he 
was  called  upon  to  sign  and  witness  was  of  sound  mind  and  memory,  and  he 
looked  at  him  and  asked  him  if  he  knew  him,  and  held  a  conversation  with  him 
as  to  their  younger  days  when  they  sang  together.  Edward  D.  Sohier  remem¬ 
bers  the  testimony  which  Andrix  A.  Foster  gave  upon  that  point.  It  struck 
him  at  that  time,  and  he  regarded  that  man’s  testimony  at  that  time  as  the  im¬ 
portant  testimony  as  to  the  mental  condition  of  the  testator,  and  the  validity  of 
the  will  And  furthermore,  Dr.  Thorndike,  who  was  the  regular  attending 
physician  of  Ebenezer  Smith  during  all  his  life,  after  he  married  one  of  the 
family,  came  to  the  house  and  into  that  room  at  just  the  time  when  Mr.  Foster 
was  talking  to  Mr.  Smith,  and  heard  the  conversation  which  did  take  place  there 
at  the  time,  and  he  remembers  it.  Now,  the  testimony  of  the  nurse  is  false,  and  I 
dwell  upon  her  testimony,  because  it  is  the  only  testimony  on  that  point  which 
has  been  produced  yet, — because  the  character  of  Eliza  W.  Smith,  as  she  has 
shown  herself  on  the  stand,  is  such  as  not  to  entitle  her  to  a  moment’s  weight. 

The  testimony  of  that  nurse  as  to  the  proceedings  at  the  time  of  the  execution 
is  false  ;  whether  mistakenly  or  intentionally,  it  is  false;  it  is  not  true.  Four¬ 
teen  years  ago  she  made  a  different  statement,  which  Mr.  Sohier  took  down, — 
entirely  different.  At  that  time  she  said,  “  that  she  went  to  Mr.  Smith’s  the 
night  before  the  will  was  signed  ;  that  the  next  morning  before  dinner,  Isaac, 
Mrs.  Thorndike,  Mrs.  Gen  and  Mrs.  Smith  came  in  ;  Isaac  said,  ‘  father,  we 
have  brought  your  will ;  ’  he  said,  ‘  what  will?  ’  Isaac  said,  4  the  one  we  have 
drawn  up  by  way  of  compromise,’  and  began  to  read  it ;  Mrs.  Giles  objected  ; 
then  he  asked  each  of  them  if  they  were  satisfied  ;  called  for  his  wife  first ;  she 
said  she  was ;  Isaac  said  he  was ;  then  he  called  for  Eliza,  and  she  said  she 


27 


was  harmonious  ;  then  asked  for  Sarah,  and  she  was  ;  then  they  sent  for  Mr. 
Foster  ;  then,  as  he  was  sitting  in  his  chair,  he  called  for  his  specs,  with  the 
will  before  him  ;  his  wife  got  them  ;  then  Mr.  Foster  came  in,  and  we  were 
asked  to  witness  ;  Isaac  guided  his  hand  ;  we  signed  ;  then  a  conversation  took 
place  between  Foster  and  Ebenezer  Smith  as  to  the  Handel  and  Haydn 
Society.”  Mr.  Edward  D.  Sohier  took  this  statement  down  at  that  time. 

Mr.  Chcmdler :  Did  he  say  that  Ebenezer  Smith  asked  the  witnesses  to 
sign  it?  Does  that  appear  there?  Mr.  Drury :  I  have  given  you  what  the 
whole  thing  was.  Mr.  Chandler :  I  have  got  it  correctly,  thank  you. 

Mr.  Drury :  This  bears  not  only  upon  what  the  occurrences  were  at  the 
execution  of  the  will,  but  also  upon  Mr.  Smith’s  mental  condition  at  the  time, 
and  particularly  upon  the  preposterous  pretence  that  everything  of  any  im¬ 
portance  was  not  known  fourteen  years  ago.  And  the  Probate  Court  pro¬ 
ceedings  show,  the  minutes  of  the  Probate  Court  proceedings  show,  that  she 
made  a  different  statement  at  that  time  as  to  what  occurred  at  the  time  when 
the  will  was  executed,  from  what  she  does  now.  Dr.  Storer’s  testimony  also 
falsifies  the  present  testimony  of  Mrs.  Giles,  and  so  does  Miss  Patterson’s  testi¬ 
mony.  And  I  have  a  statement  which  was  drawn  within  a  month  after  the  old 
man  died,  which  Mrs.  Thorndike  gave  to  her  confidential  adviser,  Paul  Willard, 
in  regard  to  the  circumstances  under  which  the  will  was  signed,  and  also  pur¬ 
porting  to  contain  a  statement  which  the  nurse  Giles  had  made.  It  was  not 
until  after  I  had  discovered  that  statement  that  I  had  positive  and  indisputable 
evidence  that  Mrs.  Thorndike  was  present  when  the  will  was  signed.  Her 
memory  was  that  she  was  not  present.  She  declared  to  me  that  she  was  not 
present.  She  could  not  come  to  the  point  of  saying  that  she  was,  although  I 
considered  that  it  would  be  very  advantageous  to  her  case  if  she  had  been 
present  at  the  time  of  the  execution  of  this  will.  It  was  not  until  after  she  died 
that  I  found  the  positive  evidence  that  she  was.  She  had  so  far  forgotten  it 
that  she  solemnly  swore  in  the  Supreme  Court  at  the  time  of  the  Eliza  Smith 
will  case  that  she  was  not  present.  Here  she  has  left  a  statement  to  her  confi¬ 
dential  adviser,  before  this  matter  was  tried  here,  as  to  the  circumstances  under 
which  it  was  executed,  which  corroborates  the  statement  made  by  the  nurse  at 
that  time  as  it  appears  in  Mr.  Sohier’s  handwriting,  and  it  is  corroborated,  and 
will  be  corroborated  by  testimony  of  witnesses  whom  we  shall  call  here. 

Mr.  Chandler :  The  date  of  that  paper — the  date  of  that  statement?  Mr. 
Drury :  There  is  no  date  to  it.  I  can  fix  the  date  by  other  evidence.  This  I 
found  among  the  papers  of  Paul  Willard,  her  counsel  at  that  time,  and  this  was 
the  statement  which  she  made  to  him  at  that  time,  and  it  was  made  when  her  mind 
was  fresh,  and  there  is  more  probability  in  favor  of  the  correctness  of  that  state¬ 
ment  than  there  is  of  the  correctness  of  any  evidence  which  depends  upon  the 
mere  memory  of  witnesses  as  to  transactions  which  took  place  fourteen  years  ago. 

But  Mrs.  Giles,  we  shall  show  you,  was  an  uncertain  witness  fourteen  years 
ago.  Eliza  W.  got  hold  of  her, — a  shrewd,  crafty  womam  of  the  world,  who 
knew  how  to  get  round  ignorant  women  like  Mrs.  Giles, — took  her  out  to  West 
Medford  and  moulded  her  mind  to  her  own  purposes,  and  talked  this  matter 


28 


over  then,  and  she  was  an  uncertain  witness  at  that  time.  But  she  did  not  go 
to  the  length  which  she  has  gone  now,  fourteen  years  afterwards,  after  her 
memory  has  faded. 

False  the  witness  is,  whether  honest  or  not,  in  pretending  to  remember  so 
much,  and  we  know  that  it  is  impossible  for  a  woman  like  her,  an  ignorant 
woman,  a  woman  of  very  little  understanding,  to  remember  so  much,  when 
others  remember  so  little.  I  asked  the  witness  Mrs.  Giles  one  question ; 
it  was  not  a  matter  of  much  importance,  but  it  shows  you  what 
a  reckless  witness  she  was.  I  asked  her  if  she  would  have  re¬ 
membered  a  thunder-storm,  if  it  had  occurred  while  she  was  there. 
“Oh,  yes,  of  course.”  Now  there  actually  was  a  violent  thunder-storm  on  the 
morning  of  the  8th  of  October.  I  looked  this  up  to  refute  the  testimony  which 
the  nurse  had  given  at  the  time  of  the  taking  of  her  deposition,  fixing  the  time 
of  Isaac’s  coming  back  there  as  on  the  8th,  and  saying  that  Isaac  said  at  break¬ 
fast,  “what  a  clear  night  it  was  coming  up  the  Sound,”  and  to  show  it  utterly 
improbable  that  he  would  have  made  that  remark  in  regard  to  a  night  on  which 
there  was  a  violent  thunder-storm.  Well,  she  could  not  remember  it,  of  course. 
Nobody  could  have  remembered  it.  But  it  shows  how  she  pretends  to  remem¬ 
ber.  Why,  she  could  not  go  back  one  year,  to  the  places  at  which  she  had 
lived,  when  I  asked  her  those  questions.  Why,  these  witnesses,  these  able  men 
whom  we  shall  call  here,  remember  hardly  anything.  Mr.  Sohier  remembers 
but  very  little.  Dwight  Foster,  a  man  as  clear  headed  as  any  man  in  this  State, 
remembers  almost  nothing  ;  he  does  not  even  remember  being  here  at  the  time 
of  the  probate  of  the  will.  Dr.  Thorndike  cannot  remember  who  were  present 
at  the  time  of  the  execution  of  the  will,  to  save  his  life.  He  could  not  swear 
that  Eliza  W.  Smith  or  his  wife  was  present  at  that  time,  from  independent 
recollection,  bare  memory.  And  to  show  how  much  at  fault  her  testimony  is, 
and  how  reckless  she  is  also,  she  declares  that  there  was  a  consultation  at  which 
Dr.  Lewis  was  present.  Now,  neither  Dr.  Storer  nor  Dr.  Thorndike  ever  held 
a  consultation  anywhere  with  Winslow  Lewis  during  all  their  lives.  The  only 
consultation  which  took  place  was  the  consultation  on  the  8th,  when  Dr.  Thorn¬ 
dike  and  Dr.  Storer  were  present,  and  they  were  the  only  ones  present,  and  Dr. 
Lewis  was  not  there.  That  is  all  fiction.  So  much  for  Giles  ;  and  with  the  worth¬ 
lessness  of  her  testimony  exhibited,  the  case  for  the  petitioners  will  be  swept  away. 
She  is  a  reckless  witness;  of  poor  understanding;  pretending  to  have  a  miracu¬ 
lous  memory,  a  memory  which  we  know  no  person  under  Heaven  ever  had,  to 
remember  so  accurately  the  proceedings  of  fourteen  years  ago.  We  know  from 
our’own  experience  that  it  is  impossible. 

Now,  your  Honor,  before  stating  the  legal  principles  and  the  evidence  bear¬ 
ing  upon  the  charges  which  have  been  made,  let  me  say  that  I  will  not  so  insult 
anybody’s  understanding  or  nature  as  to  credit  him  with  believing  those  charges, 
or  with  making  them  in  good  faith.  Considering  the  enormity  of  the  alleged 
offences ;  the  number  of  persons  engaged  in  them, — 5  persons,  Eliza  Smith 
(  the  widow  ),  Isaac,  Sarah,  Eliza  W.,  Dr.  Thorndike;  considering  the  num¬ 
ber  of  persons  to  whom  they  must  have  been  known,  eight  persons  in  all,  the 


29 


three  witnesses  besides  those  five  persons ;  considering  the  open  manner  in 
which  these  crimes  were  committed,  if  they  were  committed  ;  and  the  amount 
of  money  which  was  involved,  well  calculated  to  bring  out  what  was  done  in 
such  an  open  manner  ;  and  considering  the  reputation  and  standing  of  some  of  the 
alleged  offenders  ; — considering  all  these  things,  it  is  incredible  that  these 
offences  were  committed,  or  if  committed,  that  they  were  not  found  out  before  ; 
and  a  person  must  not  only  have  unbounded  credulity  and  lack  of  common 
sense,  but  he  must  be  endowed  with  great  depravity  in  his  own  nature,  to  be¬ 
lieve  that  such  offences  were  ever  committed.  And  yet,  to  satisfy  those  who  do 
not  know  the  truth,  I  will  proceed  to  state  a  few  legal  principles,  and  the  evi¬ 
dence,  which  bear  upon  the  charges  which  have  been  made. 

The  Burtons  encounter  at  the  outset  certain  stubborn  presumptions  of  law 
which  are  thrown  around  the  position  which  we  occupy,  which  they  must  break 
through,  but  which  they  never  can  break  through.  And  the  first  is,  that  pre¬ 
sumption  which  the  law  throws  around  every  person  who  is  accused, — the  pre¬ 
sumption  of  innocence — a  presumption  which  gains  strength  in  accordance  with 
the  magnitude  of  the  crime  of  which  a  person  is  accused — the  presumption  that 
such  crimes  as  have  been  charged  here  were  never  committed.  This  is  followed 
by  another  presumption  of  law,  that  everything  was  done  in  due  form,  a  pre¬ 
sumption  which  gains  strength  with  age.  As  other  things  grow  weak  with  age, 
this  presumption  grows  stronger.  As  witnesses  grow  old,  forget  and  die,  as  the 
memory  of  past  transactions  become  faded  and  dim,  this  presumption  becomes 
stronger  than  ever,  and  in  time  becomes  conclusive.  Ex  diuturnitcite  temporis 
omnia  praesumuntur  sollenniter  esse  acta.  After  long  lapse  of  time  every¬ 
thing  is  presumed  to  have  been  done  in  due  form.  Then  this  is  followed  up 
by  another  presumption  to  which  this  maxim  applies  with  as  much  force  as  it 
does  to  wills, — the  presumption  of  the  regularity  of  judicial  proceedings, — that 
after  a  court  has  once  passed  upon  a  question,  the  decree  of  that  court — the 
judgment  of  that  court — was  made  upon  evidence  justifying  that  decree.  The 
decree  of  this  court  admitting  that  will  to  probate  appears  here,  dated  November 
17th,  1864,  and  signed  by  your  predecessor,  and  the  presumption  is  that  that 
decree  was  made  upon  evidence  before  him  which  justified  that  decree,  that  the 
witnesses  who  testified  here  when  their  memories  were  fresh  in  regard  to  the 
transactions  about  which  they  testified,  gave  evidence  which  undoubtedly 
established  in  his  mind,  to  his  satisfaction,  that  it  was  the  last  will  and  testa¬ 
ment  of  Ebenezer  Smith.  And  then  we  find,  if  your  Honor  please,  that  an 
appeal  was  taken  to  the  Supreme  Judicial  Court,  and  it  is  a  matter  of  record  in 
that  court,  that  a  jury  found  that  that  will  was  signed  by  Ebenezer  Smith,  or  by 
some  person  in  his  presence  by  his  express  direction,  that  he  was  of  sound  and 
disposing  mind  and'  memory,  that  the  will  was  attested  by  three  competent 
witnesses  in  his  presence,  and  that  it  was  not  procured  by  undue  influence  or  fraud. 

Mr.  Chandler :  You  don’t  mean  to  say  that  there  was  a  trial.  Mr.  Drury: 
I  mean  to  say  that  it  appears  on  the  record  of  that  court  of  which  I  have  an  at¬ 
tested  copy  among  my  papers,  that  those  issues  were  tried  and  passed  upon  by  a 
jury,  and  the  verdict  of  the  jury  appears  there  in  that  court  upon  that  question. 

5 


3° 


Mr.  Chandler:  You  don’t  mean  to  say  there  was  a  trial.  Mr.  Drury : 
I  have  said  exactly  what  the  truth  is,  that  the  records  show  that  three 
or  four  issues  were  submitted  to  a  jury,  and  the  records  show  the  verdict 
of  that  jury  signed  by  the  foreman  of  that  jury,  and  afterwards,  what  ap¬ 
pears  here  also,  that  the  court,  the  hig'hest  court  of  the  Commonwealth,  issued 
a  decree  establishing  that  will  as  the  last  will  and  testament  of  Ebenezer  Smith. 
And  the  presumption  is  that  that  decree  of  that  court  was  made  upon  a  showing 
which  justified  that  decree  and  no  other.  Res  judicata  pro  veritate  accipitur. 

We  also  find,  if  your  Honor  please,  that  there  was  a  compromise  made 
among  the  parties,  a  family  compromise,  signed  by  the  guardian  ad  litem  and 
Dwight  Foster,  counsel  of  the  Burtons, — able  counsel,  honorable  counsel, — a 
family  compromise,  which  the  law  specially  favors,  which  our  Supreme  court 
has  said  is  entitled  to  the  highest  consideration  in  a  court  of  Equity,  even.  And 
there  is  the  strongest  presumption  in  favor  of  that  compromise 

Now  against  these  presumptions  the  Burtons  have  nothing  except  that  pre¬ 
sumption  which  arises  from  presumptuousness  and  audacity. 

Now,  if  your  Honor  please,  what  is  the  evidence  in  regard  to  a  conspiracy? 
That  is  one  of  the  charges,  a  conspiracy — a  conspiracy.  That  is  a  charge  made 
in  the  opening  argument.  It  is  a  charge  which  has  been  made  in  various  ways 
from  beginning  to  end.  It  appears  in  that  old  powder-boat  petition  filed  by 
General  Butler,  that  it  was  a  conspiracy  to  defraud  these  Burtons  out  of  receiv¬ 
ing  their  share  from  the  estate  of  Ebenezer  Smith,  and  it  has  been  paraded  in 
the  newspapers  and  by  the  counsel  here  as  a  conspiracy  of  these  persons.  Now 
what  evidence  is  there  of  conspiracy?  What  evidence  has  been  given  of  a  con¬ 
spiracy?  Suppose  that  those  persons  who  are  charged  with  a  conspiracy  had 
done  nothing?  Would  these  defrauded  persons  have  fared  any  better?  No. 
These  conspirators,  the  three  that  are  put  forward  as  the  principal  conspirators, 
had  every  reason  to  be  satisfied  with  the  state  of  things  before  the  time  of  this 
pretended  conspiracy,  a  conspiracy  which  did  not  benefit  them,  and  did  not  de¬ 
fraud  these  Burtons  out  of  a  dollar,  and  the)’  know  it,  and  always  did  know  it. 
And  I  dismiss  that  charge  without  any  further  comment,  as  being  too  utterly 
contemptible  to  deserve  consideration. 

Forgery  is  another  charge,  which  is  the  making  of  a  false  writing  to  the 
prejudice  of  some  other  person’s  right. 

Mr.  Cha?idler :  Excuse  me.  Is  that  alleged  in  the  petition  ?  Mr.  Drury. 
You  have  alleged  it  in  your  opening  argument  as  “grasping  by  threats,  intimi¬ 
dation,  and  finally  by  forgery,”  which  you  had  published  in  the  Advertiser  and 
to  the  world,  and  which  was  paraded  in  large,  leading  letters. 

Mr.  Chandler :  It  is  not  in  the  petition,  Mr.  Drury.  Mr.  Drury:  No. 
You  went  outside  of  your  petition.  You  were  even  ashamed  of  your  prede¬ 
cessor’s  old  petition.  You  did  not  allege  it,  but  you  had  the  audacity  to  make 
the  charge  outside  of  your  petition,  and  I  propose  to  meet  that  charge. 
Forgery — a  forged  will ; — that  has  been  the  burden  of  the  whole  song  here,  and 
that  is  what  the  world  is  thinking  about.  Why,  the  world  has  been  prepared 
by  the  statements  which  have  been  made  and  published,  to  think,  and  is  think- 


31 


ing  whether  this  was  not  a  forged  will.  What  has  been  the  object  of  this 
expert  testimony?  What  was  the  object  of  the  preparation  of  those  lithographs 
which  were  in  the  newspapers  this  morning, — facsimiles  of  the  different  signa¬ 
tures  of  Ebenezer  Smith  ?  What  is  the  object  of  all  those — this  expert  testimony 
and  this  parading  of  signatures  in  the  newspapers  ?  Why,  to  raise  an  at¬ 
mosphere,  and  make  people  believe  that  a  will  has  been  forged,  a  will  disposing 
of  $250,000,  or,  as  they  falsely  state,  $500,000 — $250,000  really,  which  was  all 
the  man  was  worth.  Now  I  have  no  wonder  the  counsel  is  ashamed  of  this,  and 
says  this  charge  does  not  appear  in  the  petition.  But  that  is  what  he  has  been 
trying  to  show,  to  gratify  his  malignant  clients.  Forgery,  your  Honor, —  whose 
right,  let  me  ask,  was  prejudiced  ?  Whatever  the  mechanical  contrivance  by 
which  that  signature  was  affixed  to  that  will,  any  lawyer  of  any  common  sense 
knows  that  there  was  not  one  element  of  forgery  in  it.  Every  lawyer  knows 
that  wills  are  executed  every  day  of  the  year,  and  are  admitted  to  probate  every 
day  in  the  year,  the  signatures  of  which  are  affixed  by  the  same  contrivance  by 
which  that  signature  was  affixed,  and  every  lawyer  and  every  judge  knows  that 
it  is  right  and  legal,  and  the  pretence  of  forgery  is  preposterous.  Forgery  in 
the  presence  of  seven  people,  without  any  attempt  at  concealment !  Forgery  by 
that  cumbersome  process,  by  holding  the  pen  in  the  hand  of  another  man  !  How 
much  easier  to  make  a  forgery  by  holding  the  pen  in  the  hand  of  the  man  who 
commits  the  forgery!  The  idea  of  committing  a  forgery  with  the  pen  in  the 
hand  of  somebody  else  !  And  there  was  no  fraudulent  purpose  or  intent  in  it, 
as  the  result  shows,  because  the  result  was  to  cut  down  that  man  who  committed 
that  alleged  forgery,  $15,000  below  what  he  had  before  by  the  prior  will.  Can 
you  see  any  motive  for  forgery  ? 

And  it  has  been  charged  that  there  was  a  fraudulent  procurement  of  the  at¬ 
testation,  and  perjury  in  procuring  the  probate  of  the  will.  Now  we  shall  show 
your  Honor, — and  I  don’t  think  that  point  will  be  even  denied, — that  the  wit¬ 
nesses  knew  that  they  were  attesting  what  purported  to  be  the  last  will  and  testa¬ 
ment  of  Ebenezer  Smith,  and  they  saw  how  the  signature  was  affixed  to  it,  and 
how  it  was  executed  ;  and  they  heard  everything  that  took  place  there  ;  they  saw 
the  way  it  was  signed  ;  they  were  there  and  signed  it  themselves  in  the  testator’s 
presence,  and  they  witnessed  everything  that  was  said  and  done.  And  an  at¬ 
testing  witness — and  I  call  your  Honor’s  attention  to  what  is  very  familiar  to  the 
law  of  probate,  that  an  attesting  witness  who  impeaches  his  own  act  is  not  enti¬ 
tled  to  credit.  Lord  Mansfield  said  that  such  a  witness  deserves  the  pillory  ;  and 
the  evidence  of  such  a  witness  must  be  looked  upon  with  suspicion.  They  at¬ 
tested  it  when  all  the  proceedings  were  fresh,  and  when  they  saw  what  was  done. 
We  are  now  removed  fourteen  years,  your  Honor,  from  that  time,  and  unfortu¬ 
nately  the  only  substantial  witness  to  that  will  is  dead  ;  but  the  evidence  derived 
from  a  consideration  of  that  man’s  character  will  have  great  weight  upon  the 
whole  of  this  case.  He  was  a  man  of  unsullied  reputation  for  truth,  honesty, 
character  and  intelligence  ;  a  shrewd,  practical  business  man  ;  a  religious  man  ; 
he  was  either  deacon  or  officiated  as  deacon  in  the  church  of  Dr.  Herrick  ;  he 
was  at  that  time  a  man  somewhat  advanced  in  life,  who  had  known  Ebenezer 


32 


Smith  a  great  while  ;  and  I  could  bring  a  hundred  good  men  of  the  city  of  Bos¬ 
ton  to  come  here  and  support  that  man’s  character.  He  was  a  man  of  too  much 
intelligence  to  be  imposed  upon  by  a  forged  will.  He  had  the  sense  to  realize 
the  act  which  he  was  called  upon  to  perform,  and  took  particular  pains  to  satisfy 
himself  of  the  sanity  of  the  man ;  and  he  was  not  the  kind  of  a  man,  and  Isaac 
knew  it,  and  everybody  knew  it,  that  a  conspirator  would  call  in,  or  a  forger 
would  call  in,  to  witness  a  fraudulent  transaction.  I  have  investigated  that 
man’s  reputation,  and  I  find  that  there  is  not  a  blemish  upon  his  character  in  any 
respect.  And  he  was  not  the  man  to  give  perjured  testimony  in  regard  to  the 
execution  of  that  will.  He  testified  in  court  as  everybody  admits.  Now  this 
consideration,  your  Honor,  is  of  very  great  importance.  Suppose  that  a  will 
were  produced  upon  which  your  Honor’s  name  appeared  as  a  witness,  and  four¬ 
teen  years  afterwards  somebody  should  say  that  the  signature  to  that  will  was  a 
forgery,  obtained  by  a  conspiracy,  and  that  that  will  was  admitted  to  probate  by 
perjury.  Those  claiming  under  that  will  would  point  to  your  Honor’s  character 
as  a  vindication  complete  against  the  charges.  And  so  we  now,  your  Honor, 
point  to  the  character  of  Andrix  A.  Foster,  and  we  say  that  if  that  signature, 
that  attesting  signature  of  Andrix  A.  Foster  is  his,  it  is  conclusive  proof  that  the 
signature  of  the  testator  was  lawfully  put  there,  however  it  was  done,  and  it  is 
conclusive  of  its  due  execution,  and  you  are  not  going  to  believe  this  woman 
Giles  if  she  says  the  contrary. 

Well  now  as  to  the  other  charges.  I  am  going  to  consider  the  other  charges. 
I  propose  to  meet  this  whole  case  submitted  in  the  opening  argument,  and  in 
the  petition  both.  As  to  the  charges  of  robbery,  poison  and  intimidation,  force 
and  fraud,  I  dismiss  those  as  being  of  the  same  piece  of  cloth  as  these  other 
charges,  made  recklessly  without  any  proof  to  sustain  them,  without  any  consid¬ 
eration  of  what  they  meant  by  making  such  baseless  and  preposterous  charges. 

Now  it  is  pretended  that  the  circumstances  of  the  execution  of  the  will  were  not 
known.  It  is  absolute  nonsense.  It  was  their  own  fault  if  they  did  not  know 
these  circumstances.  They  had  only  to  ask  the  witnesses  to  the  will.  Dwight 
Foster  did  ask  Andrix  A.  Foster,  the  witness,  and  had  a  conversation  with  him, 
aud  Andrix  A  Foster  was  not  a  man  to  lie  to  Dwight  Foster,  and  Dwight  Foster 
then  learned,  because  we  know  that  he  was  a  man  of  sufficient  shrewdess  to 
learn, — one  of  the  ablest  lawyers  of  the  Commonwealth, — we  know  that  he  gained 
from  that  witness  a  relation  of  the  circumstances  attending  the  execution  of  that 
will,  as  far  as  that  witness  knew  them.  He  had  the  opportunity, — and  he  says 
he  undoubtedly  did  appear  here,  although  he  has  forgotten  it, — he  had  the  op¬ 
portunity  to  ask  those  witnesses  as  to  those  circumstances,  and  we  find  that  he 
did  ask,  we  find  that  he  knew,  we  find  that  he  was  present  and  knew  all  about  it 
and  had  opportunity  to  know  it. 

We  never  sought  to  conceal  anything.  The  circumstances  were  known,  and 
the  counsel  of  the  Burtons,  after  learning  everything  of  the  circumstances,  \Vas 
glad  to  effect  a  compromise,  and  get  for  the  Burtons  five  times  as  much  as 
Ebenezer  Smith  ever  intended  they  should  have  of  his  porperty,  and  Dwight 


33 

Foster  told  them  and  their  father  and  their  guardian  ad  litem  that  they  had  no 
case,  after  he  knew  all  the  facts. 

And  every  charge  which  has  been  made  public  here  is  swept  away,  will  be 
swept  away,  by  the  testimony  which  we  shall  produce,  and  it  will  show  that  the 
will  of  Ebenezer  Smith  which  is  now  disputed  was  his  last  and  valid  will  and 
testament ;  and  if  so,  he  had  a  legal  right  to  make  it  and  dispose  of  his  property 
as  he  saw  fit  under  the  law.  How  desperate  and  reckless  and  groundless  are  these 
charges,  directed  against  respectable  people,  which  have  been  so  outrageously 
paraded,  and  confidently  published  to  the  world,  even  before  a  trial  originally ! 

I  call  your  Honor’s  attention  now,  lastly,  to  the  evidence  which  is  derived 
from  a  consideration  of  the  character  of  the  parties  in  this  case.  First,  the 
Burtons  ;  I  don’t  know  whether  they  are  in  sympathy  with  each  other  or  not,  the 
elder  one  at  any  rate  is  responsible,  but  they  both  appear  as  petitioners,  and  I 
take  it  for  granted  that  the  younger  ratifies  all  that  his  brother  has  done,  and  is 
participant  with  him  in  everything.  All  I  want  to  know  about  them  is,  whether 
or  not  they  had  anything  to  do  with  bringing  that  Burns  boy  up  to  the  point  of 
swearing  that  he  witnessed  that  probate  order,  at  the  request  of  Dr.  Thorndike, 
in  the  absence  of  Eliza  Smith  ; — whether  or  not,  I  say,  they  had  anything  to  do 
with  bringing  that  boy  up  to  that  point,  all  I  want  to  know  is,  that  after  they 
had  procured  undoubted  proof  that  the  boy’s  testimony  was  untrue,  and  that  a 
great  wrong  and  injury  had  been  done  to  Dr.  Thorndike,  a  man  of  respectable 
standing,  a  man  of  respectability,  they  did  not  take  the  trouble  to  inform  him 
of  it.  That  is  all  I  want  to  know  about  them.  And  the  records  of  this  court 
show  enough  from  the  character  of  the  affidavits  which  they  piled  into  this 
court,  and  which  they  or  somebody  for  them  tried  to  have  published,  but  which 
were  so  vile  that  no  newspaper  could  be  found  to  publish  them,  and  which 
had,  and  they  knew  it,  and  everybody  knew  it,  not  any  bearing  whatever  upon 
any  part  of  the  case.  That  is  all  I  want  to  know  about  them.  And  seeing  the 
way  in  which  this  case  was  prosecuted  at  the  start,  the  way  the  publications 
were  procured  before  it  came  to  trial,  I  denounced  it  then,  in  the  presence  of 
Gen.  Butler,  as  a  case  of  blackmail,  and  I  say  here  that  it  is  in  my  belief  the 
basest  and  meanest  case  of  blackmail  which  was  ever  attempted  to  be  palmed 
off  upon  a  court  of  justice.  Hazen  J.  Burton,  Sr.,  is  not  a  man  of  such  char¬ 
acter  that  he  is  above  suspicion.  What  kind  of  sons  are  these  ?  What  kind  of 
pride  have  they  to  bring  their  old  father  out  of  that  hole  into  which  he  crawled 
thirty  years  ago,  and  parade  the  infamous  character  which  he  then  bore,  so  that 
the  public  can  know  it  again?  Family  pride,  decency  ! 

Well,  another  party  is  Eliza  W.  Smith.  In  the  first  place  she  was  made  one 
of  the  co-conspirators  ;  she  turned  states-evidence  ;  had  all  the  appearance  of  a 
would-be  accomplice.  She  was  willing  then  to  convict  herself  of  crime  and 
enormity,  in  order  that  she  might  convict  her  mother,  her  sister,  her  brother, 
and  her  brother-in-law  of  odious  crimes.  What  she  can  gain  by  breaking  this 
will  up,  I  cannot  conceive  ;  but  the  probability  is  that  if  it  were  set  aside,  she 
would  get  something  in  some  way  out  of  the  Burtons.  Your  Honor  has  ob¬ 
tained  some  insight  into  her  character  already.  A  woman  who  had  so  little 
regard  for  her  mother  that  even  at  the  funeral  of  her  own  husband,  she  requested 


34 


the  Rev.  Dr.  Neale  who  officiated  there,  not  to  mention  her  mother  in  his 
prayer !  Her  motive  is  greed  of  gain  in  some  way.  That  is  one  of  her 
motives,  and  perhaps  another  motive,  as  strong  with  lier  as  any,  is  hatred. 
She  was  eager  to  pour  out  all  her  own  blood  if  she  could  only  see  her  sister’s 
blood  poured  out  first, — like  women  of  ancient  times.  A  woman,  a  sister, 
following  up  this  attack  which  was  made  in  the  first  place  against  her  sister, 
against  a  woman  !  It  was  directed  mainly  against  Mrs.  Thorndike,  when  she 
was  alive — this  whole  case,  this  whole  attack  by  these  nephews  and  this  sister. 
A  sister  who,  in  order  to  injure  her  sister  is  ready  to  convict  her  own  mother, 
and  her  own  brother  !  She  is  a  travesty  upon  the  very  names  of  sister  and 
daughter,  and  by  as  much  as  those  very  names  of  sister  and  daughter  are  sug¬ 
gestive  of  tenderness  and  love,  by  so  much  are  the  remarkable  conduct  and 
character  of  that  sister  and  daughter  worthy  of  greater  abhorrence.  These  are 
the  parties  who  bring  these  charges. 

Who  are  the  parties  against  whom  these  charges  are  brought?  One  is  Dr. 
William  H.  Thorndike,  a  man  now  standing  in  the  front  rank  of  his  profes¬ 
sion,  and  in  the  highest  branch  of  his  profession  as  a  surgeon,  who  has  been  in 
practice  here  thirty  years;  a  visiting  surgeon  at  the  city  hospital  since  1866, 
one  of  the  six  men  among  the  surgeons  of  this  city  selected  by  the  trustees  of 
that  institution  as  a  visiting  surgeon;  a  man  widely  known,  of  unblemished 
character.  He  is  one  of  the  parties.  Fortunately  we  live  in  a  community, 
your  Honor,  in  which  character  goes  for  something.  When  a  man  has  led  an 
upright,  honest  life,  and  has  acquired  a  high  reputation  in  the  estimation  of  his 
fellow-citizens,  we  give  him  credit  accordingly,  when  monstrous  charges  are 
brought  against  him.  He  is  a  man  whom  nobody  ever  even  attempted  to 
smirch  until  it  was  done  through  the  acknowledged  falsehood  of  Samuel  J. 
Burns,  in  the  trial  of  the  Eliza  Smith  will  case,  in  1876.  If  your  Honor 
please,  I  think  that  I  have  a  proper  appreciation  of  the  character  of  the  emi¬ 
nent  men  in  my  own  profession,  and  I  will  say  to  the  able  counsel  for  the 
petitioners,  I  will  say  to  anybody,  that,  if  at  the  end  of  his  life  he  shall  have 
acquired  in  his  profession  a  reputation  and  character  for  truth,  honesty, 
modesty,  ability  and  success,  equal  to  that  which  Dr.  Thorndike  has  already 
acquired  in  his  profession,  he  may  consider  his  life  a  success,  and  may  die 
contented  and  happy. 

Another  is  the  son  of  the  testator,  not  so  widely  known  in  this  community 
as  the  eminent  surgeon  of  whom  I  have  spoken,  but  if  the  confidence  of  his 
fellow-citizens,  if  positions  of  high  honor  and  trust  are  any  indication  of  a 
man’s  character  in  the  estimation  of  his  fellow-citizens  in  the  community  in 
which  he  lives,  then  that  son  is  a  gentleman  of  unquestionable  character.  For 
years  he  was  a  Commissioner  of  Emigration  of  the  State  of  New  York. 
Fourteen  years  ago  that  great  State  appointed  him  as  a  Presidential  Elector,  to 
help  cast  the  vote  of  that  State  for  Abraham  Lincoln.  He  has  risen  from  one 
position  to  another  in  the  savings  bank  with  which  he  has  been  for  many  years 
connected,  until  he  is  now  its  President,  and  under  his  management  that  insti¬ 
tution  has  stood  firm  through  these  troublous  times,  despite  the  efforts  which 


35 


have  been  made  to  shake  its  stability  and  weaken  the  confidence  of  the  people 
in  institutions  of  that  kind.  He  has  always  been  a  man  of  prominence  wherever 
he  has  been,  during  his  whole  life. 

And  it  cannot  be  denied  that  Eliza  Smith,  the  widow  of  Ebenezer  Smith, 
is  implicated,  or  was  implicated,  in  all  these  crimes,  if  they  were  ever  com¬ 
mitted.  If  she  were  living  now,  she  would  be  alleged  as  one  of  the  conspira¬ 
tors.  She  was  at  that  time  77  years  of  age  ;  a  woman  of  positive  character,  and 
largely  interested  in  public,  social  and  religious  matters.  It  has  been  attempted 
to  be  brought  against  her,  even,  that  she  was  a  religious  woman,  that  she  was  a 
Baptist.  She  was  a  religious  woman,  a  member  of  the  Woman’s  Club,  and  a 
member  of  Dr.  Neale’s  church  during  all  the  time  of  his  ministry  of  over  forty 
years,  and  she  lived  to  the  ripe  old  age  of  S8  years,  honored  and  respected. 

And  there  is  finally  Sarah  W.  Thorndike,  the  wife  of  Dr.  Thorndike,  the 
mother  of  his  children,  and  the  faithful  manager  of  his  household.  Her  tastes 
were  mostly  social  and  domestic.  She  performed  those  duties  which  belong 
peculiarly  to  a  wife  ;  consequently  her  position  depended  upon  that  of  her 
husband,  and  the  high  character  and  position  of  her  husband  gave  her  a  posi¬ 
tion  which  she  had  the  character  and  ability  to  maintain  with  credit  and  suc¬ 
cess  ;  and  no  woman  could  have  done  it  better,  tier  tastes  and  occupations 
being  what  they  were,  I  cannot  say  that  she  was  widely  known,  except  as  the 
Burtons,  instigated  by  malice  and  hatred,  by  giving  publicity  to  lies  and  the 
false  statements  of  thieves  and  perjurers,  gave  her  a  notoriety  which  she  did 
not  deserve.  No  woman  in  this  community  is  safe  against  attacks  of  that  kind. 
Any  woman’s  reputation  may  be  injured  in  that  way  ;  only,  thank  God,  it  is 
the  misfortune  of  but  few  women  in  this  world  to  have  such  men  as  they  are 
for  nephews.  She  was  thd  youngest  of  the  family  of  Ebenezer  Smith,  and  as 
is  often  the  case,  she  had  the  misfortune  to  be  the  favorite  of  her  mother,  whose 
chief  comfort  and  support  she  was  during  all  the  trials  and  troubles  with  which 
that  unfortunate  family  were  afflicted.  This  was  the  source  of  all  her  woes- 
All  her  misfortunes  had  their  origin  in  filial  duty  and  affection.  I  wish  that  she 
might  have  lived  to  see  herself  again  vindicated,  as  she  will  be,  far  less  ably, 
but  I  trust  no  less  conclusively,  than  she  was  formerly  vindicated  upon  another 
occasion,  when  that  very  able  and  upright  man  Judge  Hoar  met,  before  a  jury, 
the  attack  which  was  made  upon  the  will  of  her  mother.  But  she  died  while 
this  case  was  pending.  She  is  free  from  the  care  and  anxiety  which  would 
naturally  come  from  such  outrageous  conduct  as  her  nephews  have  been  guilty 
of,  and  I  believe  that  she  has  gone  to  a  better  place  than  this,  especially  as 
their  former  illustrious  counsel,  in  making  in  this  place  for  the  first  time  in  his 
life  of  which  I  ever  heard,  a  profession  of  religion,  had  the  piety  and  gentle¬ 
manliness  and  kindness  to  wish  that  she  might  go  to  a  worse  place. 

Now  these  are  the  parties  on  the  one  hand  who  bring  this  case,  and  on  the 
other  the  parties  against  whom  these  charges  are  brought.  Persons  of  mean 
character,  or  at  least  of  suspicious  character,  with  every  presumption  against 
them,  presumptions  which  would  be  against  them  even  if  their  character  were 
the  very  best,  bring  these  charges  against  people  of  the  highest  character  and 


36 


standing,  who  have  every  presumption  in  their  favor,  presumptions  which 
would  be  in  their  favor,  even  if  their  characters  were  bad.  They  bring  a  case 
which  would  require  the  highest  order  of  proof,  establishing  the  crimes  which 
they  charge  beyond  a  reasonable  doubt,  but  they  fall  short  of  even  the  lowest 
order  of  proof.  They  bring  such  a  case,  your  Honor,  as  was  never  sustained 
in  this  Commonwealth,  which  nobody  else  ever  had  the  audacity  even  to  at¬ 
tempt  to  sustain  in  this  Commonwealth.  With  all  the  presumptions  of  law  in 
favor  of  the  rightfulness  of  what  has  been  done,  after  all  this  long  lapse  of  time 
of  fourteen  years,  when  the  memory  of  transactions  of  a  period  so  remote  is 
dim,  faded  and  defective,  when  even  those  who  were  engaged  in  this  case  form¬ 
erly  have  forgotten  what  evidence  was  given,  what  amount  of  evidence  would 
it  take  to  convince  your  Honor  that  these  parties  were  guilty  of  the  charges 
which  have  been  made  against  them,  or  would  induce  your  Honor  to  unsettle 
an  estate  of  a  quarter  of  a  million  dollars  so  long  after  it  has  been  settled  ? 

That  is  all  I  shall  now  say  in  regard  to  the  evidence  in  this  case.  We  have 
not  raised  as  yet  any  technical  objection  to  trying  this  case  here.  We  are  now 
eager  to  have  it  tried,  in  order  that  the  people  may  know  what  a  groundless 
case  has  been  brought.  We  have  done  more  than  the  law  required  us,  and 
considering  the  way  in  which  the  case  has  been  prosecuted,  I  think  we  may 
fairly  claim  the  right  of  a  trial,  under  these  circumstances,  although  it  was  not 
necessary  to  a  determination  of  the  case  in  our  favor. 

When  the  first  petition  was  brought  I  moved  to  dismiss  that  part  of  it  which 
related  to  the  will  of  Eliza  Smith,  and  it  was  dismissed.  I  was  not  so  clear  at 
that  time  that  the  same  principles  of  law  which  applied  to  that  case  also  apply 
to  the  case  of  the  will  of  Ebenezer  Smith  ;  but  I  am  satisfied  as  the  case  now 
stands  under  the  amended  petition, — I  am  confident,  that  the  same  principles 
do  now  apply  which  applied  to  that  case,  and  I  shall  take,  your  Honor,  per¬ 
haps  twenty  minutes  longer  to  consider  the  legal  points. 

( Recess  till  2  o'clock .) 

May  it  please  your  Honor  :  When  the  court  adjourned  this  forenoon,  I  had 
come  to  certain  legal  positions  which  I  was  about  to  present  to  the  court  as 
part  of  the  defence  upon  which  we  rely.  That  is,  that  this  court  has  not  the 
lawful  power  to  revoke  the  probate  of  Ebenezer  Smith’s  will  in  this  particular 
case.  That  will  was  in  the  first  place  admitted  to  probate  by  the  decree  of  this 
court,  and  an  appeal  was  taken  from  that  decree.  Now,  it  makes  no  difference 
really,  whether  the  decree  of  this  court  was  in  favor  of  the  will  or  against  it,  as 
far  as  this  case  is  now  concerned.  The  will  does  not  rest  upon  the  deeree  of 
this  court,  this  minor  court.  It  rests  upon  the  decree  of  the  Supreme  Court 
of  Probate,  because  this  case  went  up  there  upon  the  same  issues.  The  same 
issues  were  raised  in  the  reasons  for  appeal  upon  which  it  went  up  to  that 
court,  that  are  raised  in  the  amended  petition.  It  makes  no  difference.  I  say, 
it  would  have  made  no  difference,  whether  the  decree  of  this  court  was  for  the 
will  or  against  the  will.  In  either  case  the  effect  of  an  appeal  would  have  been 
the  same.  An  appeal  vacates  the  decree.  That  is  the  point.  And  that  is 
familiar  law,  and  it  has  also  been  decided  by  the  Supreme  Court  of  this  Com- 


37 


monwealth,  in  the  case  of  Boynton  vs.  Dyer ,  in  the  18th  of  Pickering,  page  4, 
and  in  the  case  of  Paine  vs.  Cow  den,  in  17  Pickering,  42.  But  it  is  so  familiar 
as  law  that  it  is  hardly  necessary  to  cite  any  cases  in  support  of  it.  This  mat¬ 
ter  was  also  decided  in  England,  and  I  need  only  refer  to  the  name  of  Sir  John 
Nicholl  as  an  authority,  in  the  case  of  Newell  vs.  Weeks ,  2d  Phillimore,  page 
230.  Sir  John  Nicholl  in  that  case  held  that  it  was  too  late  to  ask  for  the  re¬ 
vocation  of  the  probate  after  a  decree  of  the  Appellate  Court  sustaining  the  will. 
Why,  your  Honor,  if  it  were  not  so,  if  after  the  Supreme  Court  has  passed  its 
judgment  upon  the  same  issues,  the  petitioners  can  turn  right  round  just  as  soon 
as  the  case  gets  back  in  this  court  and  carry  it  up  to  that  court  again  by  appeal 
from  the  decision  of  this  court, — why,  a  man  could  keep  a  case  going  back  and 
forth  between  these  two  courts  forever,  and  there  would  be  no  limit.  Suppose 
this  case  goes  up  to  the  Supreme  Court  now,  and  they  are  overruled  in  that 
court,  what  is  to  prevent  their  beginning  again  just  the  same  as  they  have  be¬ 
gun  here,  and  go  right  over  the  same  ground  again,  unless  your  Honor  at  the 
outset  dismisses  their  petition  because  it  has  been  decided?  Now  I  refer  to 
the  reasons  of  appeal  filed  in  this  court  fourteen  years  ago  by  Andrew  N. 
Burton,  guardian  ad  litem  of  these  same  petitioners.  There  were  three  sets  of 
reasons  of  appeal  in  this  case  upon  which  this  case  went  up  ;  one  by  the  Bur¬ 
tons,  another  by  Arthur  G.  Smith,  and  one  by  Thomas  P.  Smith.  Compare 
the  allegations  in  the  present  petition  with  the  reasons  of  appeal  on  which  this 
case  went  to  the  Supreme  Court  of  Probate  fourteen  years  ago.  All  through, 
your  Honor  will  find  that  the  same  issues  were  raised  in  the  reasons  of  appeal 
in  regard  to  the  validity  of  that  will  which  are  raised  here  in  this  petition. 
That  part  of  the  case  has  been  decided  which  is  comprehended  by  those  reasons 
of  appeal  upon  which  the  case  went  up.  It  has  been  decided  by  the  Supreme 
Court  of  Probate,  and  in  fact  it  is  a  matter  of  record,  that  certain  issues  were 
framed  there  for  a  jury  covering  these  points  that  were  raised.  One  of  those 
issues  was  that  the  will  was  signed  by  Ebenezer  Smith,  or  by  some  person  in 
his  presence,  and  by  his  express  direction,  and  was  properly  witnessed  ;  also 
that  Ebenezer  Smith  was  of  sound  mind,  and  also  the  issue  of  undue  influence, 
and  fraud.  These  issues  were  framed  in  that  case,  and  were  decided  upon  by 
a  jury  in  favor  of  the  will.  And  the  whole  case  was  passed  upon  by  the 
Supreme  Court  of  Probate,  and  that  court  having  made  its  decree,  the  will 
stands  upon  the  decree  of  that  court,  and  this  is  not  the  place  to  attack  a  decree 
of  the  Supreme  Court  of  Probate.  The  will  does  not  stand  upon  a  decree  of  this 
minor  court,  but  upon  that  of  the  Supreme  Court.  What  is  the  use  of  taking 
an  appeal,  and  what  does  an  appeal  amount  to,  unless  that  appeal  is  conclusive 
upon  this  court?  There  would  be  no  end  to  the  discordance  between  this 
court  and  the  Supreme  Court,  if  a  decree  of  that  Supreme  Court  could  be  at¬ 
tacked  here  in  this  court.  Why  is  it  an  Appellate  Court  ?  Why  is  it  made  so  by 
•  statute,  if  the  decree  of  that  court  is  not  conclusive  and  binding  upon  this  court? 

Furthermore,  what  is  still  more  important  in  this  case,  is,  that  these  petition¬ 
ers  are  estopped  from  attempting  to  procure  the  revocation  of  the  probate  of 
this  will,  estopped  by  their  acquiescence  after  they  had  learned  the  facts.  They 
6 


3§ 


are  estopped  to  assert  the  nullity  of  a  will  after  accepting  a  bequest  under  that 
will,  and  retaining  it  after  obtaining  knowledge  of  the  facts  on  which  they  seek 
to  set  the  will  aside,  and  after  beginning  litigation  to  procure  the  revocation  of 
the  probate  of  the  will.  Mr.  Cha?idler :  Have  you  any  authority  for  that? 
Mr.  Drury  :  Yes,  sir.  Mr.  Loring :  An  excellent  one. 

Mr.  Drury  :  A  great  deal  of  authority.  I  will  state  the  case  of  Hamblett 
vs.  Hamblett ,  6  N.  H.  333  ;  Dell  vs.  Armstrong ,  1  Addams  365  ;  Braha?n  vs. 
Burchell ,  3  Addams  256  ;  Holt  vs.  Rice ,  54  N.  H.  398,  where  a  case  went  up 
on  an  appeal  and  a  lawyer  of  Lowell  was  the  guardian  ad  litem ,  and  accepted 
a  legacy  after  it  had  gone  up  to  the  Supreme  Court,  and  accepted  it  under  a 
mistake  as  to  what  the  effect  would  be  of  accepting  it.  This  confirmed  the  case 
of  Hamblett  vs.  Hainblett,  to  which  I  have  already  referred  your  Honor.  The 
same  considerations  apply  in  the  case  of  Hyde  vs.  Bald-win ,  17  Pickering  308  ; 
Smith  vs.  Smith ,  14  Gray  532.  In  both  these  cases, — one  was  a  case  at  law 
and  the  other  was  a  case  in  equity — it  was  held  that  a  person  who  had  received 
a  benefit  under  the  will  was  estopped  from  denying  its  validity — that  was  held 
to  apply  both  to  lay  and  equity.  Landis  vs.  Laitdis,  1  Grant,  Penn.,  249. 
The  law  is  that  if  a  man  does  an  act  ratifying  a  deed  or  will  by  taking  property 
under  it  he  shall  not  afterwards  dispute  the  validity  of  it.  Deslondes  vs.  New 
Orleans ,  14  La.  Annual  552.  “  When  heirs  at  law  have  once  acquiesced  in  a 

will  by  accepting  some  bequests  under  it,  neither  they  nor  those  claiming  under 
it  are  at  liberty  to  assert  its  nullity.”  They  accepted  the  money  given  to  them 
by  that  will,  and  they  still  hold  on  to  the  money ;  held  on  to  it  for  two  years 
after  they  pretended  to  have  found  out  new  facts — pretended  they  had  found 
out  only  two  years  ago, — that  is  only  pretense  as  we  shall  see — and  still  hold  on 
to  it.  That  is  an  acquiescence  in,  and  ratification  of,  the  will  and  they  are 
estopped  by  it.  They  have  never  even  offered  to  give  up  that  money  which  they 
have  received,  and  it  has  been  shown  that  they  did  receive  it.  They  received  it. 

It  was  paid  to  their  guardian  properly.  Their  guardian  was  properly  appointed. 
They  cannot  put  up  the  plea  of  infancy,  and  it  was  not  paid  to  them  until  after 
they  became  of  age.  They  had  the  money  after  they  became  of  age.  They  re¬ 
ceived  it  then,  and  they  still  hold  on  to  it  and  they  never  have  offered  to  give  it  up. 

They  also  not  only  are  estopped  because  they  received,  and  still  retain,  the 
benefit  under  the  will,  but  they  are  also  estopped  because  they  received,  and 
still  retain,  a  larger  benefit  under  that  compromise  which  was  made ;  and  at  the 
proper  time,  your  Honor,  I  shall  refer  you  to  the  authorities  bearing  upon  tire 
validity  of  that  compromise. 

So  the  two  legal  positions  which  we  hold  are  that  this  Court  is  concluded  by 
the  decree  of  the  Supreme  Court  of  Probate,  the  decree  of  this  court  having 
been  vacated  by  appeal  therefrom,  and  the  will  standing  upon  the  decree  of  the 
Supreme  Court.  Secondly,  these  petitioners  are  estopped  by  their  acquiescence 
in  the  will  and  in  the  compromise  they  have  made,  accepting  the  benefit  and  hold-  * 
ing  on  to  it,  and  thereby  at  this  very  moment  acquiescing  in  and  ratifying  that  will 
and  compromise.  They  have  not  placed  themselves  in  a  situation  in  which  they 
can  legally  contest  the  will,  or  defeat  the  compromise,  on  any  ground  whatever. 


39 


Closing  Argument  of  John  A.  Loring,  Esq., 

Counsel  for  Isaac  T.  Smith. 

JANUARY  si,  1879.  • 

- 0 - 

May  it  please  your  Honor-.  —  In  the  words  of  another,  “  the  time  has  now 
come  when  I  feel  that  I  shall  truly  stand  in  need  of  all  your  indulgence.  It  is 
not  merely  the  novelty  of  this  proceeding  that  perplexes  me,  for  the  mind  grad¬ 
ually  gets  accustomed  to  the  strangest  things  ;  nor  is  it  the  magnitude  of  the 
cause  that  oppresses  me,  for  I  am  borne  up  and  cheered  by  the  conviction  of 
the  justice  of  my  client’s  cause,  which  must  by  this  time  be  shared  by  all  who 
have  heard  the  evidence  given  in.  But  it  is  the  very  force  of  this  conviction, 
the  feeling  that  it  operates  on  the  mind  of  the  court,  the  feeling  that  it  operates 
rightly,  which  now  dismays  me  with  the  apprehension  that  my  unworthy  way 
of  handling  it  may,  for  the  first  time,  injure  it.  And  while  others  have  trembled 
for  a  guilty  client,  or  been  anxious  in  a  doubtful  cause,  or  been  crippled  with 
the  consciousness  of  some  hidden  weakness,  or  chilled  by  the  influence,  or 
dismayed  by  the  hostility  of  public  opinion,  I,  knowing  that  here  there  is  no 
guiltiness  to  conceal,  nor  anything  save  the  resources  of  perjury  to  dread,  am 
haunted  with  the  apprehension  that  my  feeble  discharge  of  this  duty  may  not 
be  worthy  of  the  cause  I  represent.”  But  with  the  assurance,  may  it  please  the 
Court,  —  and  I  now  speak  my  own  words,  —  that  the  clear  m^rit  of  my  cause 
may  more  than  suffice  for  the  weakness  of  its  advocate,  I  will  lay  before  your 
Honor,  as  briefly  as  possible,  the  facts  that  are  material  to  be  considered. 

Fourteen  years  ago,  Ebenezer  Smith,  a  man  well  known  and  honored  in 
this  city  of  Boston,  died.  He  left  a  paper  bearing  his  name,  and  purporting  to 
be  his  last  direction  for  the  distribution  of  his  property.  His  spattered  signature 
now  attacked  was  attested  by  three  witnesses,  who  state  as  follows  :  “  The 

above  instrument  was  signed,  sealed,  published  and  declared,  by  the  above- 
named  Ebenezer  Smith,  as  and  for  his  last  will  and  testament,  in  the  presence 
of  us,  the  undersigned,  who,  at  the  request  of  the  said  Ebenezer,  and  in  his 
presence,  and  the  presence  of  each  other,  have  subscribed  our  names  hereto.” 

(Signed)  “  Andrix  A.  Foster, 

Anna  G.  Giles, 
Margaret  Patterson.” 

This  court,  after  hearing  all  the  evidence  in  the  presence  of  the  able  lawyers 
who  then  represented  all  the  parties  opposing  the  will, — I  need  not  catalogue 


40 


them,  for  they  are  fresh  in  the  mind  of  the  court,  these  contestants  being  the 
children  of  Eliza  W.  Smith,  the  Burton  boys,  and  that  is  all, — decided  that  this 
paper  was  what  it  purported  tc  be,  the  act  and  the  last  will  of  Ebenezer  Smith. 
After  the  will  had  been  finally  established  by  this  court,  by  the  Supreme  Court 
and  by  agreement  of  all  the  immediate  heirs  at  law  of  the  testator,  the  executors 
named  in  that  will  proceeded  in  their  duty,  in  the  duty  they  were  bound  to  per¬ 
form,  to  execute  the  trust  imposed  upon  them.  They  sold  the  lands  to  those 
who  bought  them,  relying  on  the  validity  of  the  probate  of  the  will ;  they  dis¬ 
tributed  the  proceeds  to  creditors  and  legatees,  who  received  their  money  and 
signed  a  due  acquittance  ;  and  then,  having  settled  up  their  trust,  they  were  by 
the  further  action  of  this  court  discharged  therefrom,  and  the  estate  of  Ebenezer 
Smith  became  among  the  things  that  were. 

Among  those  who  had  attacked  this  will  at  its  inception  were  two  boys, 
children  of  a  daughter  of  Ebenezer  Smith,  who  had  died  eleven  years  before 
him,  and  of  her  husband,  Hazen  J.  Burton,  Sr.  These  boys  who  had,  since 
their  mother’s  death,  been  alienated  from  their  grandfather’s  family,  had  in  all 
the  wills  made  by  Ebenezer  Smith,  from  1859  to  1864,  being  one  will  in  1859, 
one  will  in  August,  1864,  and  two  codicils,  and  one  will  on  October  5,  1864, 
which  was  this  will,  received  just  $500,  and  they  had  stood  by  the  wills  of  this 
testator  from  1S59  to  the  recipients  of  $500  in  all  the  wills  that  he  made, 
and  of  nothing  more.  The  father  of  these  two  boys  whose  character  I  shall 
touch  upon,  gently  perhaps,  but  sufficiently  hereafter, — the  father  instituted 
proceedings  to  set  aside  that  will  of  October  5,  1S64.  His  counsel  was  Dwight 
Foster,  a  former  judge  of  the  Supreme  Court,  whom  he  retained  before  the  will 
was  offered  for  probate,  who  investigated  the  case,  saw  Andrix  A.  Foster  one 
of  the  witnesses  of  the  will,  gave  the  matter  all  that  attention  that  was  necessary, 
applied  to  it  all  the  diligence  for  which  he  is  so  famed,  and  all  the  skill  and 
ability  for  which  he  is  so  well  known.  He  and  Charles  Levi  Woodbury  to¬ 
gether,  and  Hazelton  &  Ware, — these  three  firms,  or  these  three  lawyers,  had 
the  case  of  this  will  under  their  consideration,  and  they  bent  all  their  energies 
to  seek  how  they  might  set  it  down,  prevent  its  being  set  up,  and  the  result  of 
it  all  was  that  they  came  to  the  conclusion  that  the  will  of  October  5,  1S64,  was 
the  last  will  of  Ebenezer  Smith,  and  a  compromise  was  made  by  which  these 
young  men,  through  their  guardian,  received  $5,000.  Here  were  five  or  six 
appellants ;  the  case  could  have  been  kept  in  court  some  two  or  three  years, 
and  the  real  estate,  which  had  then  fallen  almost  down  to  its  last  point  and  was 
falling  more,  would  realize  less  and  less.  A  long  litigation  would  have  been 
ruinous — and  the  executors,  well  knowing  the  character  of  Burton,  senior, 
adopted  the  idea  of  a  compromise.  A  compromise  was  made,  and  the  guardian 
of  these  boys,  authorized  by  this  court  so  to  do,  received  the  $5,000,  signed  an 
agreement  by  which  he  accepted  that  sum  in  full  settlement  of  all  the  claims  of 
these  wrards  upon  the  estate  of  Ebenezer  Smith.  In  addition  to  the  counsel 
whom  I  have  named,  to  wit:  Dwight  Foster,  Charles  Levi  Woodbury,  Hazel- 
ton  &  Ware,  I  will  add  Thomas  P.  Smith.  I  have  named  all  but  the  last. 
I  know  him  not,  and  as  Judge  Hoar  reserved  to  himself  that  caution,  when 


asked  a  question  as  to  whether  if  two  witnesses  swore  that  his  Honor  the  Judge 
of  this  Court  was  seen  standing  on  his  head  out  in  Court  Square,  he  would  be¬ 
lieve  it,  and  replied,  I  believe,  “  for  the  veracity  of  one  I  will  not  vouch,”  so  I 
will  not  vouch  either  tor  the  veracity  or  the  integrity  of  Thomas  P.  Smith.  He 
added  net  enough  to  the  power  that  came  from  these  others  whom  I  have 
named  to  bring  a  successful  result,  for,  as  we  have  seen,  their  efforts  were  not 
successful. 

After  the  will  had  been  established  the  estate  was  settled,  and  as  a  conse¬ 
quence,  titles  have  been  passed,  houses  have  been  built,  and  innocent  men  have 
spent  their  money,  relying  upon  the  judgment  of  this  court  as  giving  them  title. 
And  now,  after  these  fourteen  years  have  elapsed,  and  after  these  lands  have 
passed  into  the  hands  of  innocent  purchasers,  upon  which,  as  in  West  Medford, 
they  have  spent  a  hundred  thousand  dollars  in  improvements,  after  these  four¬ 
teen  years  enjoyment  of  the  $5,000  which  was  paid  their  guardian  upon  the 
faith  of  their  honest  compromise,  protected  not  now  by  infancy,  having  not 
infancy  for  an  excuse,  but  with  the  knowledge,  although  without  the  honesty 
or  the  self-respect,  which  I  shall  have  occasion  to  note  hereafter,  which  they 
would  have  were  they  not  tainted  as  they  are  by  something  that  I  will  name 
hereafter,  they  again  besiege  your  Honor’s  court  with  new  charges  against  the 
will. 

There  is  a  certain  lack  of  good  faith  in  this  proceeding,  and  as  I  recall  the 
testimony  in  the  early  proceedings,  this  whole  thing  looks  very  much  like  the 
tail  to  a  kite  that  was  the  chief  toy  or  instrument  of  their  amusement,  or  like 
the  tender  of  a  locomotive  which  they  were  to  drive  through  the  judgments  of 
this  court.  Two  years  ago  they  attacked  their  grandmother’s  will ;  two  years 
ago  they  commenced  proceedings  here  which  resulted  in  the  will  of  that  grand¬ 
mother  being  set  up,  by  which  will  these  two  same  young  men  got  just  $500, 
as  they  had  from  their  grandfather.  Five  hundred  dollars  was  the  mark  set 
upon  their  heads  from  1859  through  the  whole  life  of  their  grandfather,  and  the 
same  mark  or  brand,  whatever  it  may  be  called,  was  set  upon  them  as  their 
value,  or  at  any  rate  as  the  measure  of  regard  which  they  were  held  in  by  both 
their  grandfather  and  their  grandmother.  They  attacked  their  grandmother’s 
will,  they  opposed  its  probate,  the  court  set  aside  their  opposition  as  vain,  they 
appealed  to  the  Supreme  Court,  and  they  had  for  their  counsel  no  less  a 
counsellor  than  A.  A.  Ranney,  who,  when  he  strikes,  strikes  from  the  shoulder, 
and  when  he  hits  it  is  felt.  Judge  Hoar,  who  has  made  himself  familiar  to  this 
cause,  and  somewhat  has  occupied,  and  does  occupy,  quite  a  prominent 
position  as  one  of  the  instruments  by  which  we  have  unearthed  these  scandal¬ 
mongers  and  perjurers,  one  of  the  strongest  weapons  that  has  been  furnished 
us  by  which  to  expose  their  fraud  and  wickedness,  —  he  and  his  son  acting 
for  the  executor  of  the  grandmother’s  will,  resisted  the  attack  upon  that  will. 

It  would  seem  as  if  the  attack  upon  their  old  grandfather’s  will,  which  gave 
them  but  $500,  with  the  little  evidence  which  they  had  been  able  to  discover 
against  it,  would  have  been  sufficient  to  have  deterred  them  from  attacking  the 
will  of  their  grandmother,  but  it  was  not  sufficient.  And  it  was  twelve  years 


42 


after  the  old  man  was  buried,  beyond  the  infelicities  of  his  pestered  existence, 
beyond  the  reach  of  creditors,  beyond  the  reach  of  Eliza  W.  Smith’s  persistent 
efforts  to  grasp  his  money,  that  his  widow  died,  and  died  in  the  arms  of  Mrs. 
Thorndike,  and  was  not  murdered  by  Mrs.  Thorndike  as  the  Burton  boys  foully 
suggested  in  the  office  of  Judge  Hoar,  and  she  was  buried,  too.  The  dull  tones 
of  the  funeral  bell  were  the  tocsin  which  summoned  the  tribe  of  Burtons  to  that 
attack  ;  the  vultures  gathered  for  another  unholy  feast  because  they  were  not 
satisfied  with  their  grandmother’s  will,  that  they  should  have  but  $500.  And 
to  get  more  the  same  cry  was  raised  then  that  is  now,  of  fraud,  of  undue  in¬ 
fluence,  and  I  may  add  of  murder,  for  this  was  a  subject  which  they  considered, 
and  they  even  suggested  that  crime  as  having  been  committed  by  their  aunt, 
Mrs.  Thorndike,  the  wife  of  Dr.  Thorndike,  who  is  esteemed  in  this  com¬ 
munity  among  the  first.  By  reason  of  their  presenting  in  his  presence  two  affi¬ 
davits,  one  from  a  doctor,  and  the  other  from  a  nurse,  that  her  medicine  was 
drugged,  Judge  Hoar  denounced  them,  and  told  them  to  leave,  and  they  left. 
But  these  cries  rang  out,  and  these  unholy  hands  were  again  laid,  and  this  time 
on  the  fair  record  of  a  spotless  life.  Why,  it  was  in  that  case  that  the  Burns 
boy, — I  believe  that  was  his  name,  I  have  heard  of  it  in  this  trial,  and  I  remem¬ 
ber  it,  although  it  was  months  ago, — it  was  in  that  attempt  to  defame  Mrs. 
Thorndike  that  the  Burns  boy  testified.  He  testified  against  her ;  he  stands 
indicted  to-day  for  his  perjury.  How  many  more  witnesses  there  were  in 
that  case  who  were  indicted  for  perjury  I  know  not,  for  I  was  not  then  engaged, 
may  it  please  your  Honor,  in  the  painful  and  disagreeable  duty,  and  the  re¬ 
volting  task  of  writing  the  biograph)'  of  Eliza  W.  Smith  and  Hazen  J.  Burton,  Sr. 
How  many  of  them  who  have  testified  here  deserve  that  dispensation  I  think 
your  Honor  and  myself  would  agree. 

Three  weeks,  or  more,  were  occupied  by  the  court,  his  Honor  Judge  Colt  and  a 
jury,  and  these  same  young  men  contested  then,  I  doubt  not  with  the  same  zeal,  I 
know  not  whether  with  the  same  disposition,  for  I  knew  not  then  of  all  their 
eccentricities,  to  say  the  least.  The  result  of  that  contest  was  that  the  grand¬ 
mother’s  will  was  set  up,  and  there  seemed  to  be  an  end  of  the  strife.  The  will 
was  set  up,  sustained  by  the  verdict  of  a  jury,  and  final  judgment  was  entered 
thereupon,  and  “  all  the  clouds  that  lowered  upon  our  house  ”  seemed  in  the 
deep  bosom  of  that  judgment  buried.  But  this  was  not  to  be.  The  spirit  that  in¬ 
spired  all  this  previous  litigation  survived  so  many  defeats,  and  so  we  are  here. 
Fourteen  years,  compromise  signed  and  sealed,  the  opinion  of  wise  counsel 
given  them,  the  judgment  of  the  Supreme  Court  and  a  verdict  of  a  jury  presented 
for  their  careful  consideration,  and  what  is  the  next  step  that  is  taken? 

It  would  seem  as  if  after  so  much  labor,  so  much  waiting,  attended  with 
always  the  same  result,  their  litigious  spirit  would  have  lost  its  energy,  it  would 
seem  as  if  they,  by  that  time, — as  if  this  Hazen  J.  Burton,  Jr.,  would  have  “  let 
by-gones  be  by-gones,”  as  his  good  old  grandmother  used  to  tell  him  whenever 
he  went  to  see  her,  and,  as  I  argue,  he  was  complaining  to  her  of  the  $500 
which  his  grandfather  had  given  him,  and  no  more.  One  would  have  supposed 
after  all  this  that  he  would  have  let  the  by-gones  be  by-gones.  But  no. 


43 


About  the  month  of  May  last,  I  should  think  it  was,  the  owners  of  real  estate, 
the  lawyers  and  all  others  who  had  been  wont  to  regard  the  decrees  of  this, 
and  of  the  highest  court  of  the  State,  to  be  final  in  all  matters  and  questions  sub¬ 
mitted  to  their  determination,  as  established  facts,  as  sure  safe-guards  and 
protections  if  regarded  and  obeyed,  were  startled  by  the  announcement  that 
what  fourteen  years  ago  was  decreed  by  this  court  to  be  the  last  will  and  testa¬ 
ment  of  Ebenezer  Smith,  and  also  so  decreed  by  the  Supreme  Court  on  appeal 
thereto,  was  not  the  will  at  all  of  the  alleged  testator,  but  was  a  fiction  and  a 
fraud.  Startled  at  the  facts  announced,  at  the  consequences  claimed,  at  the 
wickedness  alleged,  and  at  the  theory  that,  if  these  facts  were  proved,  the 
decree  of  this  court  and  decree  of  the  Supreme  Court  of  the  Commonwealth 
were  nullities,  and  of  no  effect,  the  public  were  informed  that  a  will  made  and 
approved  fourteen  years  ago  by  two  courts,  a  will,  under  which  nearly  $500,000 
worth  of  property  had  been  held,  divided  and  conveyed,  gave  no  right  to  hold 
and  no  power  to  convey.  The  novelty  of  the  announcement  was  not  greater 
than  the  terror  it  excited,  and  well  it  might.  We  met  curious  and  anxious 
conveyancers  running  hither  and  thither  from  the  office  of  my  brother  Drury, 
and  hither  and  thither  to  the  office  doubtless  of  Mr.  Chandler,  to  know  whether 
the  titles  which  they  had  passed  of  the  property  in  West  Medford,  and  which 
was  held  by  banks  under  mortgage,  and  to  take  which  they  had  been  induced 
by  the  certificates  of  these  wise  men,  good  counsellors  and  good  conveyancers, — 
whether  these  titles  were  of  any  value,  and  whether  all  this  proclamation  which 
was  then  paraded  in  the  papers  had  any  force,  or  was  merely  something  they 
knew  not  what.  And  this  alarm  was  not  diminished,  may  it  please  the  Court, 
and  I  think  you  will  realize  that  fact  fully,  by  the  fact  that  this  doctrine  was 
proclaimed  in  the  papers  by  that  remarkable  lawyer  and  man,  whose  name  was 
double  leaded  in  the  columns  of  the  day  as  its  champion  and  proclaimer.  He 
was  a  bold  man  to  take  this  ground,  and  to  announce  this  purpose,  and  Benja¬ 
min  F.  Butler  is  that  man.  His  courage,  not  to  say  audacity,  led  this  charge, 
and  your  Honor  well  remembers  the  abundant  epithets  he  heaped  on  my  client, 
Mr.  Smith,  and  the  fierce  denunciation  he  hurled  at  all  who  ventured  to  deny 
his  so  called  facts ,  and  his  so  called  law.  He  endorsed  the  sworn  statement  of 
these  two  young  men,  once  obscure  and  unknown,  but  now  conspicuous  and 
notorious,  and  gave  emphasis  to  them  by  his  powerful  invective  and  his  bold 
assurance.  He  cried  fraud,  coercion  and  compulsion,  and  the  press  of  the  day 
echoed  his  ravings.  But  his  voice  was  soon  hushed.  After  two  hearings  be¬ 
fore  your  Honor,  quietly  but  vigorously  met,  as  he  was  by  my  friend,  Mr. 
Drury,  feebly  supported  by  myself,  that  great  man  disappeared  from  this  con¬ 
test,  if  I  can  dignify  it  as  such,  and  the  place  that  once  knew  him  has  known 
him  “  no  more  forever.” 

I  hold  in  my  hand  the  original  petition  for  the  vacating  of  the  probate  of  this 
will,  well  styled  by  my  friend,  Mr.  Drury,  the  “old  powder-boat  petition.”  I  have 
here  this  budget  of  affidavits  in  its  support,  and  I  shall  have  the  honor  to  sub¬ 
mit  that  they  are  as  harmless  as  nursery  rhymes,  or  as  a  disastrous  political 
campaign.  And  not  only  did  these  petitioners  assail  the  final  judgment  of  this 


44 


court  upon  the  will  of  their  grandfather,  but  they  assailed  tire  judgment  of  this 
court  and  of  the  Supreme  Court  upon  their  grandmother’s  will.  And  this 
crusade,  this  rough  handling  of  final  decrees,  they  undertook,  not  wearied  at 
all  by  the  unsuccessful  effort  of  that  pious  but  persistent  father  of  theirs  in  1864 
and  1865  to  prevent  such  a  decree  on  the  first,  and  of  their  own  in  1876  to  pre¬ 
vent  the  last.  GeneraUButler  is  not  here,  but  his  mantle  with  new  decorations 
has  fallen  on  other  shoulders,  and  we  have  a  new  campaign  inaugurated.  The 
old  double-barrel  petition  has  exploded,  and  a  new  one  of  only  one  barrel  is 
brought  to  bear.  In  the  attack  on  the  wills  of  Eben’r  and  Eliza, — and  the  Court 
remembers  that  the  original  petition  joined  those  two  together, — filed  in  1878 
in  this  Court,  they  charged  that  both  these  wills  were  false  and  forged,  and 
everything  else,  and  that  the  judgment  of  the  Probate  Court  in  regard  to  both 
of  them  was  “  all  vanity  and  vexation  of  spirit.” 

Under  the  lead  of  their  new  commander,  under  the  guidance  of  their  new  coun¬ 
sel  and  without  the  aid  of  the  hero  of  many  battles  whom  they  had  chosen  to  lead 
this  desperate  attack,  without  the  aid  of  the  man  who  is  heralded  as  the  friend  of 
the  oppressed  and  the  poor,  without  the  aid  of  him  whom  we  find  standing  at 
the  head  of  more  desperate  legal  battles  than  any  man  of  his  day,  or  of  many  a 
day  before  him,  —  a  man  who  could  spend  I  don’t  know  how  many  weeks  trying 
to  wrest  a  verdict  from  a  New  York  jury  in  a  claim  against  General  Sheridan 
for  I  don’t  know  how  many  millions  of  dollars,  and  do  it  and  come  out  as  fresh 
as  the  rosebud  which  he  carries  in  his  lappel,  without  a  verdict  for  one  cent, — 
without  his  wonderful  ability  under  the  guidance  of  the  new  counsel  whom  they 
have  chosen,  they  bear  down  upon  us.  The  attack  on  the  wills  of  Ebenezer  and 
Eliza,  which  was  made  by  that  original  petition  supported  by  all  those  affidavits, — 
the  attack  on  those  two  wills  was  abandoned.  My  impression  is,  —  I  venture  to 
suggest,  that  it  was  too  much  for  the  successor  of  him  who  was  removed,  and  so 
the  present  commander  of  this  “band  of  noble  brothers,”  aunts  and  brothers- 
in-law,  with  his  headquarters  I  should  think  somewhere  on  the  Stonington  Line 
between  here  and  New  York  drops  the  attack  on  Eliza’s  will  and  brings  all  his 
force  against  Ebenezer’s.  One  barrel  of  the  original,  and  as  I  have  called  it, 
double-barreled  petition,  had  exploded  and  they  have  rammed  their  whole  charge 
into  the  other  barrel  and  they  fired  their  gun  and  the  smoke  has  cleared  away 
and  the  will  still  stands  up  to  the  present  day,  but  the  petitioners  are  here  asking 
the  same  thing  they  have  been  asking  for  a  large  portion  of  their  matured  lives, 
and  in  vain.  And  we  then,  and  thereafter,  from  the  inauguration  of  the  present 
counsel  for  the  petitioners,  have  encountered  an  amended  mode  of  warfare,  less 
merciful,  more  malignant  than  that  which  was  waged  with  such  vigor  and  force 
by  my  friend  General  Butler,  whose  retiring  from  the  cause  and  whose  absence 
therefrom  I  have  never  ceased  to  regret  from  the  time  that  he  left  those  bvo 
young  men  and  their  cause  never  more  to  come  again.  I  should  have  welcomed 
him  back  on  the  4th  of  December  when  we  began  and  I  should  have  welcomed 
him  each  morning  down  to  the  21st  of  January  when  we  begin  to  see  the  begin- 
ing  of  the  end. 

Your  Honor  remembers  that  while  the  cause  was  in  the  hands  of  General 


45 


Butler,  the  executors  moved  that  these  boys  should  pay  back  to  the  executors 
the  $5,000  which  they  had  received  under  the  terms  of  a  compromise  made  in 
good  faith  by  the  executors  in  regard  to  all  these  controversies,  and  that  that 
motion  was  opposed  with  great  energy  and  power  by  General  Butler  himself, 
and  that  the  result  of  that  was  that  the  court  granted  the  motion  of  the  exe¬ 
cutors,  and  ordered  these  petitioners  to  pay  back  that  $5,000,  or  they  must  stop 
enquiry  as  to  this  will.  And  so  long  as  they  held  the  $5,000  which  they  had 
received,  paid  to  them  in  good  faith  upon  the  condition  that  they  would  stop 
all  talk,  and  take  that  as  more  than  they  were  entitled  to,  for  the  sake  of  getting 
rid  of  them,  until  they  paid  back  their  money,  it  was  determined  that  their 
voices  should  no  longer  be  heard  in  this  court.  The  money  was  not  repaid, 
and  these  petitioners  appealed,  and  had  the  executors  maintained  the  position 
which  they  then  occupied,  your  Honor  certainly  would  not  have  been  occupied 
as  you  are  at  this  period,  because  that  cause  could  not  have  been  decided  by 
the  Supreme  Court  to  which  they  appealed  that  question  for  months  after  this, 
and  there  would  have  been  another  year’s  delay.  What  did  the  executors  do  ? 
Well,  they  had  heard  this  talk  ever  since  the  trial  of  the  Eliza  Smith  will,  they 
saw  the  undying  spirit  of  fight,  and  I  don’t  know  what  to  call  it, — litigious  and 
quarrelsome  temper  of  those  boys,  their  determination  to  bring  a  suit  against 
somebody,  in  the  hopes  that  that  somebody  would  pay  them  some  money  in 
order  to  get  rid  of  them,  whether  they  were  entitled  to  it  or  not,  and  they  said, 
“  well,  we  will  not  interpose  any  technical  objections;  they  charge  us,  Isaac 
T.  Smith  and  Dr.  Thorndike,  with  forgery  ;  they  charge  us  with  fraud  and  co¬ 
ercion  ;  they  charge  us  with, — well,  enough  crimes,  if  half  had  been  committed, 
to  make  us  outcasts  from  society ;  let  us  hear  what  they  have  to  say ;  we 
shrink  not  from  the  investigation  ;  we  desire  it  if  they  mean  what  they  say.” 
And  so  they  waived, — these  two  gentlemen  whose  characters  up  to  that  time 
never  had  been  assailed,  never  had  been  assailable — Dr.  Thorndike  here  in  this 
community  having  established  for  himself  by  his  skill  and  his  knowledge  and 
experience,  having  gained  for  himself,  I  may  say,  the  first  position  in  one 
branch  of  his  profession  above  all  his  peers,  and  Mr.  Smith,  who,  up  to  that 
time  had  not  been  publicly  attacked  by  anyone,  —  these  gentlemen  waived 
repayment  of  the  $5,000.  That  eccentric  sort  of  a  defamer,  Mr.  O’Connor,  if 
that  is  his  name,  who  appeared  here  this  morning,  brought  on  here  from  New 
York,  invented  by  Hazen  J.  Burton,  Jr.,  discovered  by  him  and  put  into  action 
this  morning ; — he  exploded  through  the  cross-examination  of  my  brother 
Drury  ^ad  Mr.  George  P.  Smith  ; — well,  there  was  not  enough  remaining  of 
that  O’Connor  as  a  witness  to  do  anything  with,  excepting  to  mark  the  spot 
where  he  once  stood.  How  much  of  his  time  he  had  spent  in  going  round, — 
well,  I  don’t  believe  there  were  business  men  enough  in  Boston  who  would 
allow  him  to  speak  to  them,  from  his  own  story,  or  who  would  listen  to  a 
charge  from  him  against  Issac  T.  Smith.  I  will  come  to  that  by  and  by.  But 
up  to  that  time,  sir,  the  character  of  Mr.  Isaac  T.  Smith  had  stood  where  it 
stands  now,  and  where  he  has  placed  it  by  his  own  integrity,  his  own  industry, 
his  own  fidelity  to  his  conscience  and  his  God,  and  by  which  he  will  stand  to 

7 


46 


the  end  of  his  days.  And  yet  they  are  assailed  !  General  Butler  has  headed 
off  a  petition  charging  them  with  fraud,  and  the  newspapers  had  circulated 
it,  and  they  had  been  slandered  so  far  as  evil  tongues  could  slander  them.  I 
don’t  mean  the  tongue  of  General  Butler  to  be  evil,  but  I  mean  the  tongues  of 
the  Burton  boys  and  their  venerable  old  father.  I  mean,  that  their  tongues  had 
been  slandering  and  slashing  away  the  characters  of  two  good  men,  one  a  citizen 
of  Boston,  and  the  other  of  New  York,  who  said  “  we  must  meet  it.”  We  must 
meet  these  attacks  upon  our  character,  which  were  then,  so  far  as  evil  tongues 
could  slander  them,  befouled  either  by  the  actual  guilt  or  by  the  wicked  slander 
of  these  Burton  men,  if  I  can  call  them  men,  who  have  spent  so  much  of  their 
own  time,  and  so  much  of  the  time  of  this  county  in  this  nefarious  scheme,  in 
the  bold  assaults  of  blackmailers,  and  we  must  sift  the  whole  thing  to  the  bot¬ 
tom,  and  see  whether  there  is  any  merit  in  their  case,  or  whether  they  are  what 
they  seem  to  be.  The  press  of  Boston  was  at  every  hearing  polluting  the 
atmosphere  by  detailed  recitals  of  the  foul  things  charged  upon  these  gentle¬ 
men.  The  morning  papers  were  made  entertaining  at  the  breakfast  tables  and 
at  the  evening  cigar,  by  Isaac  T.  Smith’s  atrocities  and  Dr.  Thorndike’s  abomi¬ 
nations.  And  conscious  of  no  wrong,  assured  of  their  own  integrity  and  up¬ 
rightness,  they  removed  all  technical  obstacles  to  a  full  investigation,  and  so  we 
are  here,  and  we  have  had  a  busy  time.  With  their  new  counsel  commenced 
a  new  petition  as  an  amendment  to  the  old,  and  then  ensued  such  a  flood  of 
interrogatories,  depositions  and  motions  that  life  was  made  a  burden  to  my 
brother  Drury  and  myself.  Those  sacred  letters,  “  B.  C.  ”  were  given  a  new 
significance,  and  Burton  and  Chandler  wrere  synonyms  of  harrassings,  worry- 
ings,  harryings,  badgerings,  annoyances  and  plagues.  But  clear  consciences, 
good  constitutions  and  a  kind  Providence  have  “  lengthened  out  our  lives,”  and 
brother  Drury  and  myself  have  come  to  see  “  this  joyous  day  ;  ”  and  it  may  be 
well  called  so,  both  by  us  and  by  your  Honor,  I  think,  for  we  begin  to  see  the 
beginning  of  the  end  of,  what  we  regard  on  our  side,  a  most  atrocious  and  un¬ 
called  for  attack.  We  congratulate  ourselves,  and  allow  us  to  congratulate 
your  Honor,  that  so  near  appears  to  be  the  probability  that  we  shall  have  some 
other  business  to  attend  to  than  to  ferret  out  the  iniquities  of  the  Burton  family 
and  Eliza  W.  Smith. 

May  it  please  your  Honor,  I  listened  with  astonishment  as  the  petitioners’ 
counsel  stood  in  this  presence  as  a  lawyer  and  sketched  with  a  certain  facility 
of  rhetoric  the  story  upon  which  he  proposed  to  ask  this  court  to  set  aside  its 
own  decree,  entered  fourteen  years  ago,  and  upon  which  titles  to  millions  now 
rest,  which  some  say  must  be  shattered  if  the  request  of  these  petitioners  is 
granted.  This  story  was  of  the  threats,  intimidations,  fraud,  force  and  forgery 
by  which  Ebenezer  Smith’s  large  wealth  was  grasped  from  a  semi-conscious, 
dying  man ;  of  the  brick  cell,  wherein  the  old  man  could  be  safe  from  the 
power  of  his  own  wife  and  children,  not  from  the  power  of  Isaac  T.  Smith, 
because  he  lived  in  New  York  ;  then  of  his  fear  of  poison,  causing  his  cup  to 
be  first  rinsed  and  his  food  to  be  first  tasted  by  others  before  he  would  venture 
to  partake, — and  Hazen  J.  Burton,  Sr.,  is  the  man  who  testifies  to  this, — of  the 


47 


doctrine  of  primogeniture  which  his  eldest  son  sought  to  inculcate  to  his  father. 
This,  may  it  please  the  court,  that  I  am  reciting,  is  the  opening  speech  or  pic¬ 
ture  which  was  made  by  the  present  counsel  for  these  petitioners,  and  which 
was  sent  broadcast  through  the  land,  and  which  was  sent  to  the  trustees  of  the 
Metropolitan  Savings  Bank  by  somebody,  conceived  by  somebody,  in  order  to 
blacken  the  character  and  the  fair  fame  of  my  client  Mr.  Smith.  These  are  his 
statements  ;  we  will  see  by  and  by  whether  they  are  his  witnesses’  statements. 
He  spoke  of  the  bold  and  desperate  importunities  which  so  beset  the  testator 
that  in  April,  1862,  he  writes  to  Hazen  J.  Burton,  “  I  must  fight  or  be  robbed 
of  the  last  pound  of  flesh  and  the  last  dollar.”  The  bold  and  unjustifiable  ap¬ 
plication  of  that  phrase  in  that  letter  to  the  old  man’s  suffering  by  reason  of  his 
children’s  misconduct,  instead  of  relating  to  the  sufferings  which  the  mind  of 
that  successful  manager  was  then  enduring  by  reason  of  the  downfall  of 
value,  is  the  boldest  and  the  “  baddest  ”  attempt  that  ever  I  listened  to  in  a 
court  of  justice  where  we  seek  to  do  justice  to  our  antagonists,  however  severe 
we  may  hold  them  to  the  consequences  of  what  they  say.  I  shall  show  your 
Honor  that  that  letter  was  not  written  having  in  mind  any  unkindness  of  his 
children  toward  him  or  being  a  freak  of  any  unkindness  on  his  part  towards  his 
children,  for  he  loved  his  children  and  they  loved  him,  and  those  children  were 
not  robbing  him,  but  his  creditors  were.  He  speaks  of  the  manoeuverings  to 
cut  off  the  Burtons  ;  of  the  closer  imprisonment  to  which  the  old  man  was  sub¬ 
jected  as  he  grew  feebler  and  so  more  easily  influenced.  He  speaks  of  the  dis¬ 
trust  of  those  about  him  ;  that  he  guarded  his  treasures  with  a  cane  in  his  hand 
even  when  asleep.  And  these  were  the  words  of  the  gentleman  who  opened 
this  case.  He  talked  of  papers  destroyed  by  Dr.  Thorndike,  who  burned  them 
because  they  were  in  conflict  with  the  will ;  and  of  the  fear  and  distrust  the  old 
man  had  of  those  about  him  and  in  whose  power  he  was,  and  of  the  affection 
and  love  he  bore  these  petitioners  who  were  cut  off  forever  from  his  sight.  The 
counsel  then  asks  your  Honor  to  mark  the  result  of  all  these  doings,  namely, 
the  will  of  August  13,  1864,  by  which  the  old  man’s  widow  gets  one-third  of 
his  estate,  his  eldest  son,  Mr.  Isaac  T.  Smith,  one-half  of  the  residue,  and  his 
two  living  daughters  the  other  half  between  them  ;  then  certain  legacies  to  rel¬ 
atives  in  New  Hampshire,  and  the  sum  of  $500  to  each  of  these  Burton  boys. 
Then  he  says  that  even  then  the  “conspirators”  were  not  content,  and  to  accom¬ 
plish  more  for  themselves  the  old  man  just  about  to  die,  in  the  last  stages  of 
dropsy,  was  drugged  with  whiskey  as  a  last  resort ;  and  I  remember  distinctly 
that  his  own  witness,  by  whom  he  sought  to  prove  that  these  children  and  this 
mother  were  drugging  and  drowning  the  senses  of  their  dying  parent  and  hus¬ 
band,  their  own  witness,  who  administered  the  whiskey,  said  that  he  put  a  glass 
of  whiskey  and  water  on  the  table  at  night  and  there  would  be  most  of  it  there 
the  next  morning,  and  that  was  all  he  took.  Drugging  with  whiskey  !  Where 
is  his  proof  ?  Did  he  state  that  on  his  own  responsibility  and  think  we  should 
believe  it  because  he  said  it  ?  If  he  should  make  his  statement  again  in  the 
opening  of  a  case,  I  should  wait  until  he  proved  it,  as  I  have  in  this  case,  be¬ 
fore  I  should  believe  it.  A  vivid  imagination  possibly  may  have  led  him  from 


48 


that  accurate  investigation  of  his  cause,  because  this  drugging  by  whiskey  is  as 
grave  a  charge  as  the  poisoning  by  Mrs.  Thorndike  of  her  blessed  old  mother, 
— stealing  away  from  him  by  rum  his  wits  in  order  that  he  would  make  a  will 
which  he  never  would  make  if  he  had  his  wits  about  him.  We  stand  here 
where  justice  needs  no  disguises  and  where  we  establish  fame  and  “  defame,”  — 
when  the  truth  so  renders  it  necessary.  And  reaching  this  point  of  the  drug¬ 
ging  of  this  good  old  man  by  this  widow  and  these  daughters,  the  counsel,  I 
presume  shocked  with  the  horrors  he  had  painted, — I  remember  him  perfectly, 
— with  a  sad  and  serious  countenance,  said,  “I  would  forbear,  but  the  story 
must  be  told,”  and  he  told  it,  and  it  is  his  story,  but  the  story  of  no  one  else. 
He  need  not  have  told  it.  He  had  done  better  had  he  forborne,  for  his  story 
was  a  fiction,  for  which  he  is  responsible  and  which  his  witnesses  do  not  prove. 

One  fact  he  does  state,  and  I  give  him  the  benefit  of  that.  I  state  the  same 
as  a  fact.  He  says  Isaac  T.  Smith  did  go  to  Rollins’s  office  on  October  5th,  and 
October  5th  has  a  mystic  power.  October  5,  1S64,  he  says  that  Isaac  T.  Smith 
went  to  Rollins’s  office  and  asked  him  to  draw  a  will  for  his  father,  that  it  was 
drawn  to  the  satisfaction  of  the  “conspirators  and  confederates,”  as  he  calls 
them,  but  cutting  oft’  the  Burtons  with  only  $500  each.  And  here  is  the  climax 
of  his  story,  — and  I  ask  your  Honor  to  be  patient  with  me  in  my  reference  to 
what  he  said,  because  I  think  that  statement  made  by  counsel,  who  are  recognized 
by  their  brethren  as  men  upon  whom  we  can  look  as  guides  to  their  clients  through 
the  perils  of  litigation,  are  important.  I  think  there  is  a  character  given  to  the 
causes  we  represent  by  the  mode  in  which  we  conduct  them,  and  by  the  state¬ 
ments  that  we  make  in  regard  thereto.  I  speak  not  now  of  the  duty  which  we 
owe  to  the  community,  nor  to  our  clients.  I  speak  of  the  effect  of  our  own 
personal  conduct  upon  the  causes  we  represent,  and  therefore  I  dwell  upon  his 
opening  remarks.  Here  at  this  very  point,  after  stating  that  Mr.  Smith  went  to 
Rollins’s  office,  I  find  the  climax  of  his  story.  Here  is  the  era  in  his  case  which 
settles  all  its  future.  The  petitioners’  counsel  says  the  will  was  executed  about 
the  9th  or  10th  of  October,  a  day  or  two  after  a  consultation  of  physicians  who 
pronounced  Mr.  Smith’s  case  hopeless. 

Mr  Cha?idler :  Excuse  me,  that  is  not  so  stated.  Mr.  Lori?ig\  He  says 
this  will  was  executed  about  the  9th  or  10th.  Mr.  Chandler :  Yes,  But  what 
precedes  that?  You  will  find  I  stated  it  very  carefully.  Suppose  you  read 
what  I  said  in  this  connection  of  yours. 

Mr.  Loring :  You  said  this  will  was  executed  on  the  9th  or  10th  of  October. 
Mr.  Chandler :  Those  are  not  the  words  I  used,  sir.  Here  are  the  words  :  — 
“  So  far  as  discovered,  the  execution  of  this  will  took  place  about  the  9th  or 
10th.”  “  So  far  as  discovered.”  I  was  very  careful  to  put  these  words  in. 

Mr.  Loring :  Then  so  far  as  he  had  been  able  to  discover  he  had  found  that 
that  will  was  executed  on  these  days.  Now  if  he  meant  to  say  that  with  a  mental 
reservation,  giving  him  a  chance  to  say  that  he  hadn’t  discovered  anything  about 
it,  but  using  that  equivocal  expression  in  order  to  cover  up  a  conviction  that  it 
was  not  signed  on  these  days,  I  will  leave  that  for  him  to  say.  If  he  meant  to 
say  “  so  far  as  has  been  discovered,”  why  couldn’t  he  have  gone  on  when  he  was 


49 


carrying  his  expressions  that  extent  and  say  “  we  have  not  discovered  anything, 
we  know  it  was  signed  on  the  5th  ?”  He  says  within  three  days  after  that  he  died. 
Well,  he  died  on  the  12th.  He  said  that  without  any  “  so  far  as  has  been  dis¬ 
covered.” 

Mr.  Chandler.  Nine  and  three  are  twelve. 

Mr.  Lori?ig.  Well,  I  am  astonished  at  the  attempt  by  a  playful  reference  to 
arithmetic  to  strip  this  criticism  of  its  force.  I  say  he  stated  that  that  will  was 
executed  on  the  9th  or  10th,  and  I  refer  to  the  very  accurate, — and  I  donbt  if  there 
is  an  i  not  dotted  or  a  t  not  crossed  in  that  opening  of  his, — that  romance  of  his 
that  appeared  in  the  Daily  Advertiser  of  the  next  morning.  I  believe  there  is  not 
an  error  to  be  found  in  that  between  that  and  his  opening,  and  his  own  production, 
and  I  say  in  it  he  said  that  the  will  was  executed  on  the  9th  or  10th.  He  said 
the  testator  was  then  in  a  comatose,  lethargic  state,  wholly  incompetent  to  trans¬ 
act  any  business  or  to  follow  the  reading  of  a  paper,  that  this  will  was  produced 
and  he  was  told  it  was  there  for  him  to  sign.  This  counsel  for  the  petitioners 
then  informed  this  court  that  the  testator  knew  enough  to  murmur  and  knew 
no  more.  He  knew  enough  to  murmer  “  my  will”  and  to  feebly  utter  “  no,” 
and  then,  that  he  relapsed  into  a  semi-conscious  state.  And  then,  says  this 
counsel,  “  Isaac  T.  Smith  took  his  father’s  hand  in  his  and  wrote  his  father’s 
name  himself  upon  the  will.”  And  then  he  exclaims  “  that  the  spattered  signa¬ 
ture  (and  that  is  the  spattered  signature,  which  your  Honor  remembers)  needs 
no  expert  to  stamp  it  as  a  forgery.”  Well,  my  experience  and  my  acquaintance 
lead  me  to  make  this  simple  remark,  that  a  forger  generally  tries  to  imitate 
the  hand  of  the  original,  and  if  Isaac  T.  Smith  was  a  forger  of  that,  he  did  not 
make  the  attempt  that  a  forger  invariably  does.  I  will  come  to  the  forgery  by 
and  by.  He  says  “  the  dying  man  knew  not  what  was  done.”  He  says  that 
man  “  never  knew  or  understood  it.”  He  said  “  he  never  signed  it  and  died 
in  three  days.”  He  dont  say  “  so  far  as  he  discovered”  he  died  in  three  days, 
but  he  says  he  died  in  three  days  after  he  signed  it.  And  this  will  was  admitted 
to  probate,  says  the  learned  counsel,  by  perjury.  And  in  his  peroration  he  in¬ 
forms  us  that  these  petitioners  are  not  here  wtth  the  heinous  design  of  black¬ 
mailing  the  respondents,  that  whether  they  ever  recover  anything  or  not  they 
insist  upon  asking  that  this  forged  will  be  set  aside,  and  that  done  they  will 
cheerfully  accept  the  consequences.  That  these  two  irreproachable  young  men 
immediately  upon  discovering  two  years  ago  this  fraud,  commenced  a  thorough 
investigation,  determined  to  bring  these  wrong  doers  to  account,  compelled  to 
this  by  their  self  respect  and  by  the  respect  they  had  for  their  grandfather  ;  they 
feel  it  a  duty  to  defend  him  ;  that  they  are  the  sole  defenders  of  his  honor,  his 
name  and  his  wishes.  And  then  he  informs  us  what  “  every  Christian  man  and 
woman”  will  think  of  the  Burtons  if  these  facts  are  proved  as  he  believes,  (or 
he  said  he  believed  it,)  and  thus  ends  his  tale. 

I  will  inform  him,  and  I  think  your  Honor’s  decree  will  inform  him,  what 
will  be  thought  of  the  Burtons  not  only  by  Christians,  but  by  Turks,  Hottentots 
and  even  “  the  Heathen  Chinee”  now,  in  that  these  so-called  facts  have  been 
proved  to  be  the  boldest  lies  supported  only  by  the  perjury,  and  by  attempted 


5° 


subornation  of  perjury,  and  by  the  efforts  of  the  ringleader  of  this  band  of 
malignant  villifiers  and  slanderers.  Humanity  shudders  when  filthy  ghouls 
sneak  into  the  sepulchre  and  steal  away  the  body  of  the  dead,  but  darker  is  the 
crime  and  blacker  is  the  infamy  when,  fired  by  an  unholy  lust  of  gold,  men 
seek  to  take  away  the  reputation  of  the  dead,  whose  silent  lips  cannot  defend 
themselves.  And  all  this  clamor  and  these  calumnies,  his  story  having  beer,  told, 
were  spread  through  the  columns  of  the  press,  and  the  case  has  been  made 
notorious  and  these  foul  slanders  have  been  trumpeted  abroad. 

I  remember  one  of  the  papers  intimated  that  Mr.  Isaac  T.  Smith  probably 
would  not  be  seen  about  the  precients  of  this  court  room,  he  having  been  absent 
at  the  next  hearing.  I  don’t  know  who  inspired  that  intimation,  but  Isaac  T. 
Smith’s  presence  this  morning  must  have  inspired  the  conviction  that  he  was 
here  and  that  he  was  not  afraid  to  be  here,  and  Mr.  Chandler’s  cross-examination 
of  him,  which  he  claimed  was  going  to  do  so  much  good,  Mr.  Smith  was  willing 
to  meet  and  hear  what  he  had  to  say.  I  remember,  may  it  please  your  Honor, 
and  I  regard  this  as  my  own  duty,  that  when  application  was  made,  or  when 
the  court  was  informed  that  counsel  for  the  petitioners  desired  Mr.  Isaac  T. 
Smith  to  be  here,  the  counsel  stated  to  your  Honor,  and  the  statement  was 
made  public,  that  I  promised  at  the  former  hearing  that  Isaac  T.  Smith  would 
be  here  and  I  had  not  kept  my  promise.  I  denied  his  statement  then.  I  said 
to  him  that  what  I  did  say  was  this,  at  the  former  hearing,  that  he  asked  me  if 
Isaac  T.  Smith  was  going  to  be  here  and  I  said  “  I  have  every  reason  to  think 
he  will,”  and  he  accepted  the  amendment.  The  acceptance  of  an  amendment 
does  not  wipe  out  the  offence  of  the  first  bill.  Where  is  the  apology  ?  Oppor¬ 
tunity  has  been  offered  him  to  give  it.  He  has  let  the  opportunity  pass  and  it 
will  never  be  offered  him  again.  When  a  man  makes  an  attack  in  public,  the 
same  publicity  should  be  given  to  his  apology. 

Mr.  Chandler :  Didn’t  I  speak  to  you  after  that  hearing,  sir?  Mr.  Loring  : 
You  did,  sir ;  and  I  will  say  what  you  said  :  that  you  perhaps  did  a  little  over¬ 
state  that.  And  I  said  you  should  be  careful  how  you  deal  with  your  profes¬ 
sional  brethren,  that  you  had  enough  to  do  to  deal  with  your  parties.  And  you 
said  you  did  perhaps  a  little  over-state  that.  I  didn’t  regard  that  as  an  apology. 
Mr.  Chandler :  No  apology  is  needed,  sir. 

Mr.  Loring :  Perhaps,  with  gentlemen  of  the  professional  views  and  pro¬ 
priety  of  my  brother,  it  does  not.  Perhaps  others  may  differ. 

The  charges  which  the  petitioners  have  made  are  so  grave  that  no  gentlemen 
would  make  them,  no  honest  men  would  make  them,  no  honorable  lawyer,  who 
realizes  his  duty  as  such,  would  present  them  without  proof  enough,  at  least, 
to  raise  a  suspicion  of  their  truth  ;  and  certainly  the  ninth  allegation,  to  wit., 
that  the  evidence  upon  which  your  predecessor  set  up  this  will  in  1864  was 
immaterial  and  incompetent,  sounds  more  like  the  grumblings  of  a  disap¬ 
pointed  litigant  than  the  intelligent  attack  of  a  well-bred  lawyer. 

As  I  have  before  remarked,  the  order  of  this  court,  made  while  this  cause 
was  in  the  hands  of  General  Butler,  whereby  these  petitioners  were  forbidden 
to  proceed  with  their  attempted  proofs  until  they  paid  back  the  $5,000,  was 


5i 


waived  by  these  executors,  to  avoid  the  appearance  of  opposing  technical  de¬ 
fenses,  behind  which  they  might  be  thought  by  some  to  hide  from  a  full  disclo¬ 
sure  of  all  the  facts,  and  so  a  full  opportunity  has  been  given  the  petitioners  to 
proceed.  All  this  clamor  and  all  these  slanders  have  gone  out  to  the  world, 
trumpeted  everywhere  ;  and  as  a  lie  is  good  until  it  is  denied  and  until  it  is 
proven  to  be  a  lie,  we  desired  to  hear  their  proofs,  to  meet  and  strangle  this 
serpent  of  calumny,  which  would  otherwise  be  hissiug  around  us,  even  if  it 
could  not  sting,  and  so  the  petitioners,  keeping  the  $5,000  paid  them  on  the 
faith  of  a  compromise,  were  allowed  to  proceed,  and  they  did  proceed.  And 
a  mighty  clamor  was  made  by  their  counsel  in  his  story  of  romance,  which 
took  the  place  of  an  opening,  and  which  was  to  our  ears,  knowing  its  utter 
falsity,  as  sound  and  fury  signifying  nothing.  That  opening  was  such  as  never 
to  my  knowledge  any  advocate,  however  inexperienced,  has  ever  dared  to  make 
upon  such  utter  lack  of  proof.  A  wise  man  has  said  that  “  there  is  nothing  so 
prolix  as  ignorance.”  But  can  even  that  poor  excuse  be  made  for  statements 
like  these  I  have  referred  to  about  the  cell  and  the  poison  and  the  whiskey  and 
the  letter  in  which  the  old  man  says  he  must  fight  for  his  life,  as  showing  that 
he  was  afraid  of  his  children  whom  he  loved  and  who  loved  him,  a  letter  which 
would  be  presumed  to  have  been  written  of  strangers  and  not  of  his  own  kith 
and  kin?  These  petitioners  or  this  counsel  certainly  knew  it  was  written  by  a 
kindly  man  because  his  description  of  old  Ebenezer  Smith’s  kindness  was  such 
that  I  envy  him  his  rhetorical  skill  in  presenting  it.  He  must  have  known  that 
that  letter  was  written  by  a  kindly  man  who  loved  his  children  and  who  was 
loved  by  them,  and  he  ought  to  have  known  it  was  written  years  before  his 
death  and  that  it  had  nothing  to  do  with  his  will,  that  it  indicated  no  oppression 
and  no  evil  influences  and  no  coercion  and  no  bad  influence  upon  him  on  the 
part  of  his  family.  They  ought  to  have  known  that  he  was  struggling  with  all 
the  strength  God  gave  him  to  protect  his  property  for  his  children,  and  yet  this 
lawyer  shuts  his  eyes  to  the  facts  and  flings  to  the  four  winds  of  heaven  a  state¬ 
ment  that  this  sentence  was  a  charge  against  the  dead  man’s  wife  and  children. 
A  reckless  statement,  unless  proved,  and  in  the  absence  of  poof  a  statement 
which  I  should  think  one  would  hesitate  to  make,  whether  layman  or  lawyer, 
unless  he  could  connect  it  with  its  consequences. 

I  leave  his  opening,  referring  to  one  more  statement.  To  pursue  all  its 
peculiar  sketchings  and  representations  which  have  failed  of  proof  wonld  only 
weary  the  indignation,  and  I  will  not  expose  it  to  such  a  test.  He  has  stated 
publicly  that  this  will  was  a  forgery.  I  do  not  mean  to  occupy  the  time  of 
your  Honor  by  arguing  the  absurdity  of  this  charge,  as  matter  of  law,  at  this 
stage  of  my  remarks.  I  only  comment,  and  call  your  Honor’s  attention  to  the 
fact,  that  these  petitioners  themselves,  personally  having  some  fear  of  the  State 
Prison  before  their  eyes,  or  with  possibly  a  reviving  conscience,  or  possibly 
some  unheard  of  consequence  that  would  fall  upon  them,  made  no  such  charge 
in  their  petition.  They  never  have  sworn  that  that  was  a  forgery,  but  they  sat 
by  and  allowed  their  counsel  to  charge  it  in  his  opening.  They  sat  by  and  he 
stood  up,  he  charging  the  forgery,  and  holding  up  in  triumph  the  spattered 


52 


signature  needing  no  argument  in  proof  thereof.  It  does  not  appear  anywhere 
in  the  petition.  But  after  so  called  experts,  two  of  them,  had  been  called  to 
support  this  theory,  and  when  the  newspapers  had  been  filled  with  lithographic 
signatures,  and  when  fraud  and  forgery  had  been  trumpeted  for  weeks,  charged 
for  weeks  on  these  respondents,  the  petitioners’  counsel,  either  trying  to  shelter 
himself  from  the  just  accusation  of  my  brother  Drury,  or  for  something  else, 
coolly  said  here  in  court,  that  “  there  is  no  charge  of  forgery  made.”  Well,  if 
he  withdraws  it,  that  will  save  me  some  time,  but  I  have  seen  no  indication. 

Now,  after  six  long  days  occupied  in  putting  in  his  proofs,  he  can  do  no 
more,  save  to  talk.  He  has  given  us  the  evidence  upon  which  he  has  based  so 
tumultuous  an  opening,  and  I  can  only  say,  and  all  who  have  heard  the  stuff 
and  nonsense,  the  prevarications  and  the  perjuries  which  have  wearied  the  dull 
hours  of  these  long  days,  can  only  say,  Parturiunt  mozites  nascetur  ridiczilus 
mus.  The  mountains  have  labored,  a  silly  mouse  has  been  produced. 

Why,  may  it  please  the  Court,  the  newspapers  of  this  city  have  been  made 
marketable  for  the  last  three  months  by  the  revelations  of  family  dissensions  ;  of 
Eliza  W.  Smith’s  success  in  exciting  the  amorous  desires  of  a  superannuated  old 
public  functionary  ;  of  Hazen  J.  Burton,  Sr’s,  manly  mode  of  coming  on  to  Boston 
to  meet  the  charge  of  swindling  which  the  grand  jury  of  the  county  had 
brought  against  him  in  1848,  that  manliness  consisting  in  not  escaping  the 
clutches  of  John  Wilson,  the  chief  of  detectives,  who,  meeting  him  in  the  wilds 
of  Pennsylvania,  politely  accompanied  him  to  Boston,  and  lodged  him  in 
Charles  Street  Jail,  where  in  the  same  manly  spirit  this  grey-haired  old  hypo¬ 
crite  abode  for  weeks,  while  his  fond  father-in-law  ( the  testator  )  stood  aloof 
from  him  who  had  thus  brought  disgrace  upon  the  family  of  which  he  had  be¬ 
come  a  member  through  the  blindness  of  woman’s  love. 

These  things,  and  more  to  which  I  shall  refer  as  I  proceed,  are  but  specimens 
of  the  idle  gossip  and  indecent  history  with  which  our  ears  have  been  regaled, 
and  with  which  the  time  of  this  court  has  been  occupied, — the  time  of  your  Honor, 
this  tribunal,  respected  and  revered  as  the  guardian  of  the  property  of  widows 
and  orphans,  whose  time  is  occupied  by  the  requirements  of  that  branch  and 
the  other  branch  of  the  business  of  the  court,  but  which  has  been  mortgaged  to 
the  Burtons  and  to  those  hearings,  and  wasted  in  this  cause.  Self-respect  and 
respect  for  their  old  dead  grandfather  forsooth  !  though  they  don’t  get  a  dollar, 
that  they  are  impelled  by  that  respect  to  do  all  this !  Well  did  my  friend,  Mr. 
Drury,  hurl  his  just  maledictions  at  these  two  adventurers,  and  as  he  said,  and 
as  I  say,  these  audacious  blackmailers,  when  he  spoke  of  their  willingness  to  drag 
their  old  father,  Hazen  J.  Burton,  Sr.,  from  the  hole  in  which  for  thirty  years 
he  has  been  hiding  his  dishonored  head, — willing  thus  to  drag  their  names  at 
the  cart-tail  of  public  obloquy.  And  this  is  their  manifestation  of  self-respect. 

These  six  days  were  spent  in  slandering  the  living  and  defaming  the  dead, 
and  all  for  their  own  self-respect  and  their  love  for  their  grandfather  ! 

Assuming,  may  it  please  the  court,  that  what  has  been  disclosed  in  regard  to 
the  making  and  execution  of  this  will  was  unknown  at  the  time  of  its  probate 
in  1864,  and  that  the  respondents  withheld  it  then,  and  that  we  are  therefore 


53 


called  bn  to  show  that  that  judgment  of  the  Judge  of  Probate  was  wise,  and 
that  the  so-called  will  of  October  5,  1S64,  was  the  last  will  of  Ebsnezer  Smith, 
and  was  duly  executed,  I  now  approach  that  point 

This  assumption,  I  shall  have  the  honor  to  submit,  is  not  forced  on  us,  be¬ 
cause  I  shall  contend  that  the  petitioners  have  shown  no  concealment  or  fraudu¬ 
lent  withholding-  of  evidence  from  the  outset  of  this  whole  historv.  That  there 
has  been  shown  in  this  court  some  testimony  which  has  never  been  presented  in 
regard  to  this  will  is  true.  The  onlv  evidence  which  has  been  withheld  or  was 
never  had  before  was  the  testimony  appearing  in  favor  of  this  story,  and  if  dis¬ 
covered  at  the  time,  if  known  at  the  time,  if  it  had  been  thought  necessary  at 
the  time  when  Judge  Ames  had  considered  and  enquired  into  it,  this  would  have 
been  produced.  But  it  is  Mr.  Isaac  T.  Smith’s  testimony,  and  it  is  his  testimony 
only,  that  is  new  in  this  case,  —  that  is  the  only  new  evidence  which  now  occurs 
to  me  of  any  importance, — and  that  is  all  in  favor  of  the  will. 

I  shall  also  pass  the  point  that  these  petitioners  having  received  $5,000  in 
5865  under  a  compromise  and  holding  it  now,  cannot  deny  the  will  or  assail  its 
validity. 

I  have  then  the  honor  to  submit  that  the  document  of  October  5,  1864,  was 
the  last  will  of  Ebenezer  Smith  and  that  the  judgment  of  this  court  should  so 
be  were  it  now  for  the  first  time  offered.  And  following  the  order  of  the 
petitioners’  allegations  in  their  petition,  I  aver  that  we  have  proved  — 

1st.  That  Ebenezer  Smith  did  sign  the  will,  and  this  answers  their  2nd  alle¬ 
gation  that  he  did  not  authorize  any  one  to  sign  for  him. 

3d.  That  Ebenezer  Smith  did  make  known  to  the  witnesses  thereto  that  said 
signature  was  his. 

4th  That  Ebenezer  Smith  did  declare  to  these  witnesses  that  the  instrument 
was  his. 

5th.  That  Ebenezer  Smith  did  request  the  witnesses  to  attest  it. 

6th.  That  Ebenezei  Smith  did  know  the  contents  of  the  said  instrument. 

7th.  That  at  the  time  of  the  execution  of  this  instrument  Ebenezer  Smith  was 
of  sound  and  disposing  mind  and  memory,  and  that  he  was  entirely  capable  of 
making  a  valid  will  and  that  his  mental  facidties  were  not  impaired  at  that  time 
either  from  sickness,  old  age,  or  any  cause. 

8th.  That  the  said  instrument  and  the  signature  thereto  were  not  obtained 
and  procured  by  collusion,  fraud,  undue  influence  and  force. 

9th.  I  pass  this  allegation  as  an  insult  to  your  Honor’s  predecessor,  Judge 
Ames,  who  allowed  this  will  and  never  was  guided  to  my  knowledge  by  uncer¬ 
tain  and  incompetent  evidence.  That  allegation  is  that  that  was  set  up  upon 
uncertain  and  incompetent  evidence,  and  I  don’t  deem  myself  called  upon  to 
show  what  that  evidence  was,  but  I  assume  it  to  have  been  in  his  judgment 
sufficient  to  sustain  his  decree,  and  I  leave  the  point  confident  that  there  is  no 
other  view  that  can  be  taken  thereof. 

10th.  That  the  probate  of  this  will  was  not  obtained  fraudulently,  and  mala 
jfide ,  by  no  false  suggestions,  by  no  surreptitious  and  clandestine  conduct,  by  no 
concealment  from  the  court  of  evidence  material  to  the  case  which  if  now  dis- 


8 


54 

closed  will  justify  the  revocation  of  the  probate  of  said  will  and  of  the  letters 
testamentary^. 

These  petitioners  charge  the  contrary  of  all  these  nine  propositions  in  just 
nine  allegations  of  the  record.  And  what  are  these  charges?  The  opening 
argument  of  Mr.  Chandler  states  them  vividly.  Fraud,  forgery,  perjury  and 
force  are  the  chiefest. 

Now,  who  are  the  accusers?  Hazen  J.  Burton,  Sr.,  once  a  Sabhath-school 
teacher,  I  don’t  know  but  a  class  haranguer,  perhaps  a  preacher,  who,  in  the 
midst  of  his  sacred  professions,  fled  from  Boston  in  1848  to  escape  an  outraged 
community  and  law,  to  return  to  Charles  Street  jail  and  never  to  preach  any' 
more  forever, — to  prayer  I  would  commend  him.  He  comes  here,  it  is  true, 
acquitted  of  the  crimes  alleged  against  him  in  1848,  when  he  was  indicted, 
acquitted  by  the  spells  of  that  arch  magician,  Rufus  Choate.  I  think  he  is 
now  plunging  deeper  into  crime  and  be  is  deepening  the  darkness  of  his  own 
corruption.  These  words  are  strong,  but  I  use  them,  for  I  find  proof  to  con¬ 
vict  him,  and  use  them  as  no  rhetorical  flourish.  I  have  no  facility  of  rhetoric, 
but  facts  when  stated  simply  carry  eloquence  of  themselves.  The  fire  of  his 
wickedness  has  broken  out  again  in  his  old  age,  and,  except  by  special  inter¬ 
cession,  we  fear  the  grave  will  open  for  him  to  an  eternity  of  remorse.  Hazen 
J.  Burton,  Sr.,  I  submit  to  the  court,  is  the  father  of  all  these  lies.  He  was  in¬ 
dicted,  may  it  please  your  Honor,  in  1S48,  having  for  his  creditors  A.  &  A. 
Lawrence,  James  W.  Rage,  Samuel  Frothingham,  Coolidge  &  Haskell,  and 
my  memory  fails  to  mention  the  others, — I  wish  I  had  the  list, — and  he  says  he 
was  indicted  by  them  to  blackmail  Ebenezer  Smith.  He  says  that  the  first 
merchants  of  this  city  got  him  indicted  in  order  to  force  unjustly  and  dishonest¬ 
ly'  and  corruptly7  and  to  intimidate  Ebenezer  Smith  and  to  induce  him  to  pay 
old  Burton’s  debts. 

Well,  these  gentlemen  some  of  them  swore  that  Hazen  J.  Burton  had  swin¬ 
dled  them  out  of  thousands  of  dollars,  and  he  says  he  was  acquitted  because 
old  Mr.  Coolidge,  of  Coolidge  &  Haskell,  perjured  himself.  Old  Mr.  Sam.  T. 
Coolidge,  of  the  house  of  Coolidge  &  Haskell,  well  known  in  this  city  as  an 
honest  and  honorable  man,  associated  with  such  men  as  A.  &  A.  Lawrence, 
James  W.  Page  and  Samuel  Frothingham,  men  whose  names  and  whose 
examples  are  cherished  by'  all  good  men  and  are  defamed  by  none  but  bad  men, 
and  then  only'  when  they  think  they'  can  thereby  escape  the  toils  of  their  own 
wickedness.  He  lugs  the  names  of  these  gentlemen  and  drops  them  in  the 
dirt,  names  that  have  heretofore  signified  the  Christian  gentleman  and  the 
honest  man.  He  says  that  there  was  perjury  and  he  says  there  was  black¬ 
mailing.  Well,  I  have  heard  it  charged  in  this  case  by  my  brother  Drury, 
without  any  qualification,  that  this  whole  proceeding  is  an  attempt  to  blackmail 
Isaac  T.  Smith  and  Dr.  Thorndike,  or  to  force  them,  for  fear  of  enquiry  and 
for  fear  of  the  filth  that  might  be  thrown  upon  them  by  these  men,  to  pay 
money.  Well,  the  first  time  that  blackmail  was  mentioned  in  the  evidence  in 
this  cause  came  from  the  lips  of  Mr.  Hazen  J.  Burton,  Sr.  He  says  the  indict¬ 
ment  was  procured  by'  his  creditors  for  the  purpose  of  blackmailing,  and  that 


55 


the  indictment  was  attempted  to  be  supported  by  old  Mr.  Coolidge’s  perjury. 
Well,  familiarity  with  a  subject  renders  it  sometimes  to  some  men  suggestive 
of  occupation,  and  possibly  having  had  that  evil  scheme  tried  upon  him  in  his 
early  days,  he  thought  possibly  he  would  try  it  upon  these  men  in  his  later 
days.  He  charged  here  in  this  court  these  gentlemen  with  committing  high 
crimes,  and  he  says  they  did  it  to  force  money  from  Ebenezer  Smith.  Well, 
the  same  thought  may  have  been  suggested  to  him,  and  may  have  lingered  with 
him  and  so  he  does  what  he  says  his  creditors  did  to  him.  He  charged  them 
with  being  blackmailers, — these  men  of  upright  character.  Now  it  seems  to 
me  it  does  not  lie  in  the  mouth  of  Hazen  J.  Burton,  senior,  who,  as  I  have 
said  before,  fled  his  country  because  his  creditors  at  least  thought  he  had  cheated 
them,  to  say  this.  I  remember  distinctly  now,  I  recall  the  effort  that  was  nec¬ 
essary  to  extract  from  him  that  at  that  time  some  of  his  creditors  did  think  he  was 
a  dishonest  man.  He  said  there  always  was  a  difference,  —  some  debtors  were 
honest  and  some  were  dishonest.  It  was  a  pretty  hard  undertaking  for  me  to 
get  him  to  acknowledge  that  he  did  get  that  idea  between  February,  184S, 
when  he  went  to  New  Orleans,  and  some  time  in  May,  when  John  Wilson 
brought  him  back.  He  says  he  didn’t  bring  him  back,  he  came  back  quietly, 
but  he  landed  in  jail  when  he  came  here.  John  Wilson  was  the  Chief  of  de¬ 
tectives  in  those  days.  I  remember  his  grey  old  head  and  his  steady  eye.  Every¬ 
body  went  for  John  Wilson  when  they  were  after  a  rogue,  and  when  he  went 
for  a  rogue  he  always  caught  him.  This  man  came  home  with  Mr.  John  Wil¬ 
son,  who  treated  him  very  politely,  but  when  he  got  here  he  left  him  in  jail. 

Right  there,  may  it  please  the  Court,  I  want  to  refer  to  something  which 
illustrates  Mr.  Burton’s  character.  When  counsel  said  that  Mr.  Ebenezer 
Smith  was  afraid  of  poison,  and  that  he  had  his  cup  rinsed  with  hot  water,  and 
his  food  tasted  by  others  before  he  would  eat  it,  I  said  this  case  begins  to  need 
attention,  and  I  gave  it  attention.  What  did  Hazen  J.  Burton,  senior,  say, 
may  it  please  the  Court,  when  he  testified  in  answer  to  questions  put  by  the 
gentleman  who  represents  these  petitioners?  Why,  that  the  old  man  never 
drank  anything  from  a  cup  unless  it  was  rinsed  with  hot  water  before  he  drank 
it,  and  you  will  find  if  you  look  at  the  short-hand  reporter’s  notes  that  some¬ 
body  said  it  was  because  he  was  afraid  that  his  wife  would  poison  him.  Burton 
said  himself  he  didn’t  quite  believe  it,  but  that  was  the  story  ;  that  was  the  evi¬ 
dence  which  was  put  in  here  by  Air.  Chandler  to  prove  that  old  Mrs.  Smith 
sought  ways  of  getting  rid  of  her  husband.  She  put  hot  water  into  his  coffee 
cup,  and  into  his  tea  cup,  and  that  was  the  way  the  poison  was  to  be  driven 
out.  Well,  may  it  please  the  Court,  I  would  not  pause  a  minute  on  this  ex¬ 
cepting  that  I  do  desire  to  recall  the  utter  vanity  and  folly  of  such  attempts  to 
establish  what  never  had  an  existence.  Well,  on  the  cross-examination,  I 
asked  Mr.  Burton  if  it  ever  occurred  to  him  that  this  hot  water  was  put  into  his 
cup  so  that  the  old  gentleman  might  have  a  hot  cup  of  coffee  instead  of  a  dis- 
agreeble  one  ;  he  said  it  had  not.  “  Who  had  control  of  the  water  that  went 
‘  into  the  cup  ?  ”  “  Well,  Mrs  Smith,  she  turned  the  hot  water  into  the  cup.” 

“  Did  the  old  gentleman  ever  take  any  pains  to  find  out  whether  the  water  was 


56 


poisoned  in  that  pot  before  it  went  into  the  cup?”  “No.”  That  ended  that 
part  of  it.  And  so,  too,  we  are  told  in  the  opening,  and  Mr  Burton  testified, 
that  old  Mr.  Smith  never  tasted  food  until  it  was  tasted  by  others  !  As  atro¬ 
cious,  as  false  and  groundless  and  abominable  an  attempt  to  prove  that  old 
Mrs.  Smith  sought  to  poison  her  her  husband,  —  as  atrocious  and  as  wicked  as 
the  intimation  of  these  men,  who  go  round  apparently  with  their  pockets  full 
of  affidavits,  in  Judge  Hoar’s  office,  that  Mrs.  Thorndike  murdered  her  mother. 
Why,  what  was  the  story  about  this  eating,  and  about  his  having  others  taste 
his  food  before  he  would  venture  to  taste  it  himself?  I  asked  him,  may  it 
please  the  Court,  if  Mr.  Smith  didn’t  sit  at  the  head  of  his  table,  and  do  his 
own  carving.  Well,  it  was  a  long  while  before  he  would  admit  that  old  Mr. 
Ebenezer  Smith  had  anything  on  his  table  that  required  carving,  it  was  chiefly 
hash  or  hasty  pudding ;  that  was  the  way  he  tried  to  escape  from  me  there. 
He  finally  admitted  that  the  old  man  did  sit  at  his  own  table,  and  did  do  his 
own  carving,  and  that  he  helped  his  family  before  he  helped  himself,  and  he 
took  what  remained,  if  there  was  enough,  and  if  there  was  not  he  sent  for 
more  ;  that  he  took  his  own  food  from  the  same  piece  of  beef,  and  put  it  on  his 
plate  and  ate  it,  but  he  didn’t  pass  it  round  and  ask  some  member  of  the  family 
to  taste  it  to  see  if  it  was  safe  for  him  to  eat  his  dinner.  That  is  all  there  was  of 
that.  Well,  I  wonder  at  the  patience  of  the  Court,  I  wonder  at  the  stability  of 
counsel  who  have  been  able  to  endure  this, — and  that  is  a  fair  specimen  of  the 
attacks  which  have  been  made  by  this  counsel  with  his  witnesses,  and  these 
adventurers  with  their  frauds. 

Mr.  Chandler :  I  didn’t  state  in  my  opening  what  you  say  I  did.  Mr. 
Loring:  Well,  read  it.  Mr.  Chandler :  “In  fact  so  suspicious  had  he  be¬ 
come,  it  is  affirmed ,” — mark  these  three  words — “that  he  refused  to  drink  at 
home  till  his  cup  was  rinsed  in  his  presence,  nor  would  he  eat  there  till  after 
others  had  tasted.”  And  I  put  on  this  witness  who  affirmed  it,  and  that  is  the 
whole  story. 

Mr.  Loring :  Now  he  has  made  his  statement  once.  Then  if  he  had  let  it 
alone,  why  didn’t  he  have  the  courage  to  come  out  and  say  “  it  is  affirmed” 
that  it  is  a  lie.  It  did  prove  his  case  to  be  an  atrocity,  and  an  abomination.  It 
is  a  lie,  and  I  drop  it  there  “It  is  affirmed  !”  Well,  I  beg  to  know  who  is 
the  affirmant?  Mr.  Chandler:  The  witnesses. 

Mr.  Loring :  “It  is  affirmed  ”  that  he  was  so  suspicious  that  he  would  not 
taste  from  his  cup  or  eat  from  his  table.  May  it  please  the  Court,  is  it  not  the 
same  as  if  he  had  said  that  he  didn’t  dare  to  because  he  was  fearful  that  some¬ 
thing  had  been  done  to  the  food  and  the  drink?  If  it  is  not,  then  I  have 
wasted  perhaps  five  minutes  on  that  subject.  Mr.  Chandler :  There  is  no 
doubt  of  that.  Mr.  Loring :  No  doubt  I  have.  Not  half  has  been  told  in 
regard  to  it,  but  in  the  words  of  my  distinguished  friend  representing  the 
petitioners  “  I  will  forbear.” 

I  have  taken  a  little  diversion  because  I  had  Hazen  J.  Burton,  senior,  in  my 
mind  and  I  desired  to  illustrate  his  character  as  I  went  along,  and  I  think  I  have 
selected  two  good  specimens  of  his  testimony  which  he  gave.  I  don’t  know 


57 


that  he  told  anything  that  hurt  anybody  except  himself.  It  strikes  me  he  did 
not.  He  undertook  to  state  the  relations  that  existed  between  himself  and  the 
old  gentleman,  he  undertook  to  say  how  loving  and  kind  he  was,  he  undertook 
to  say  that  the  old  man  told  him  when  he  married  his  daughter  that  he  should 
not  give  him  anything,  but  when  the  time  of  trouble  came  he  should  come  to 
his  rescue,  and  he  said  too  that  the  affection  which  the  old  man  bore  for  these 
children  was  quite  marked  clear  down  to  1864.  Well,  that  does  not  support 
the  position  of  these  petitioners  one  iota,  because  I  am  perfectly  willing  to  ad¬ 
mit  that  old  Mr.  Ebenezer  Smith  did  have  a  kindly  regard  for  these  two  boys 
now  grown  men.  What  does  that  prove?  Why,  Hazen  J.  Burton,  senior, 
said  that  that  will  of  October,  1864,  was  entirety  foreign  to  all  the  sentiments 
that  the  man  had  expressed,  and  was  not  like  him  a  bit,  and  therefore  it  was 
not  his  will.  How  is  it  about  the  will  of  1859,  when  the  boys  got  $500?  He 
had  just  enough  affection  for  them  to  give  them  that  sum  then,  so  the  fact  that 
he  did  not  give  them  any  more  in  1864  does  not  amount  to  anything.  Why 
didn’t  that  father  who  told  Burton  when  he  married  his  daughter  Harriet  that 
when  the  hour  of  need  came,  he  would  help  him,  stand  bv  and  help  him  and  his 
children  ?  Why  did  he  leave  that  graceless  father  to  lie  in  jail  and  give  the  sons  of 
that  father  the  paltry  sum  of  $500  in  his  will  ?  And  I  will  tell  you  why.  It  is  in 
the  life  of  Burton.  That  is  the  answer  to  it.  That  good  old  man  abhorred  some 
things.  He  was  fond  of  others.  He  was  fond  of  music.  One  thing  did  not  find 
sympathy  in  his  large  heart,  which  the  counsel  for  the  petitioners  enlarged  upon 
so  pathetically, — and  he  exhibited  the  photograph  of  that  man  in  order  to  impress 
us  all  with  the  kindness  of  his  nature,  the  first  time  I  ever  have  seen  evidence 
of  that  kind  introduced,  and  it  was  amusing.  The  door  having  been  opened  I 
have  got  a  little  picture  which  I  am  going  to  exhibit  in  a  few  minutes.  I  think 
there  is  one  thing  old  Mr.  Smith  abhorred,  and  that  is  a  man  with  the  charac¬ 
ter  of  old  Hazen  J.  Burton.  There  is  no  question,  may  it  please  the  court, 
that  Burton  did  lose  caste  snd  character  here  by  reason  of  charges  that  were 
brought  against  him.  Whether  they  were  true  or  false  is  not  material.  It  is 
true  beyond  a  question  that  the  relations  which  existed  between  Ebenezer 
Smith  and  Hazen  J.  Burton  and  these  boys  were  peculiar,  from  1848  down, 
during  Mrs.  Burton’s  life.  Doubtless  the  old  man  loved  that  daughter  as  he 
did  all  his  other  children,  but  from  her  death  and  from  the  time  when  Haze  nj- 
Burton  was  indicted,  there  certainly  was  but  little .  intercourse  between  them. 
My  own  impression  is,  (it  is  not  material  to  establish  it,)  that  it  was  the  fact 
that  Hazen  J.  Burton  wras  indicted  and  that  he  ran  away  and  was  brought  back 
and  tried,  which  was  the  cause.  The  atmosphere  didn’t  suit  the  old  gentleman’s 
nostrils,  and  he  was  not  fond  of  a  person  who  had  gone  through  with  that.  I 
think  he  regarded  him  as  a  person  who  was  a  disgrace  to  his  family  and  as  a 
man  whom  he  didn’t  want  to  have  anything  to  do  with,  and  it  may  be,  know¬ 
ing  the  disgrace,  he  didn’t  propose  to  foster  the  children  whose  blood  was 
tainted  with  that  sort  of  corruption,  though  his  own  blood  mingled  with  theirs. 
I  rather  think  that  to  him  the  English  of  the  Latin  was  God’s  truth,  “  Fortuna 
ncm  mut  at  genus”  What’s  bred  in  the  bone  won’t  out  of  the  flesh.  I  think 


5§ 


he  felt  that  Hazen  J.  Burton  was  no  credit  to  his  family.  At  least,  I  think  I 
am  safe  in  saying  that.  I  don’t  think  I  shall  be  called  exaggerating  when  I  say 
he  didn’t  regard  him  as  a  credit.  My  impression  is  he  thought  he  was  a  dis¬ 
grace  and  a  man  who  had,  from  the  blindness  of  woman’s  love,  connected  him¬ 
self  with  his  family,  and  that  he  would  have  but  little  to  do  with  him,  and  he 
would  not  give  his  children  more  than  $500  each,  and  he  did  not.  He  didn’t 
give  them  more,  because  he  didn’t  see  fit  to  give  them  more.  It  was  his  own 
money,  and  he  had  a  right  to  do  thus.  In  1859  he  gave  them  the  same,  and 
the  fertile  imagination  of  the  present  counsel  for  the  petitioners  has  failed  to 
extend  to  that  period,  and  he  leaves  the  will  of  1859  untouched  by  any  insinu¬ 
ations  unaffected  by  any  charges  that  the  testator  wasn’t  his  own  man  then. 
But  we  can  say  he  was  as  much  his  own  man  in  1864  as  he  was  in  1859.  So 
much  for  Hazen  J.  Burton.  I  say,  may  it  please  the  Court,  that  in  regard  to 
him  I  need  not  spend  a  moment  more  upon  any  branch  of  this  case.  What 
he  said  didn’t  amount  to  anything ;  admitting  all  he  said  was  true.  But  when 
you  come  to  apply  the  test  to  his  testimony,  well,  it  is  not  testimony  to  be 
tested,  it  is  no  testimony  at  all,  he  don’t  know  anything,  Could  I  recall  two  or 
three  more  instances  I  would,  but  I  leave  my  brother  Drury  to  finish  that  little 
sketch.  He  may  come  across  it  as  he  closes  his  sketch,  and  if  I  have  omitted 
it  he  will  fill  up  the  gap. 

We  come  next,  (I  am  now  dealing  with  the  parties  to  this  suit)  to  Eliza  W. 
Smith,  a  remarkable  person,  a  peculiar  person,  who  will  stand  more  cross-ex¬ 
amination  than  almost  any  woman  I  ever  knew,  once  a  gay  and  festive  sort  of 
a  charmer,  I  should  think,  —  clearly  a  diplomat  armed  with  the  fascinations 
which  gave  to  the  women  of  France  such  power  over  the  great  men  of  that 
great  Kingdom.  She  got  $60,000  out  of  Ebenezer  Smith  during  his  lifetime 
and  there  wasn’t  a  single  other  child  of  that  old  man  who  could  get  a  penny.  I 
believe  he  did  give  one  of  the  Burtons,  when  he  was  a  little  boy  in  swaddling 
clothes,  some  candy,  and  told  that  little  boy  not  to  go  near  his  grandmother. 
Then  the  grandmother  gave  that  same  little  boy  in  swaddling  clothes  some 
candy  and  told  him  not  to  go  near  his  grandfather.  And  that  was  the  testimony 
which  is  given  here  to  show  the  affection  of  that  grandfather  for  those  boys, 
and  that  was  the  testimony  which  was  given  seriously  here  in  court,  and  from 
that  time,  from  the  time  of  their  candy  days,  they  had  had  nothing  to  do  with 
him.  There  was  an  attempt  made, — part  of  the  case  was  to  show  that  these  two 
young  men  had  been  beloved  by  this  old  gentleman.  The  story  of  that  candy 
is  the  only  fact  that  I  recall  as  having  shown  an  affection,  and  the  young  man 
notwithstanding  these  cautionings,  would  go  right  straight  from  the  first  one 
who  gave  him  the  candy  and  go  to  the  other  and  get  the  candy,  and  he  didn’t 
care.  I  dislike  to  dwell  on  trifling  things,  but  these  trifling  things  were  what 
they  thought  necessary  to  bring  into  this  case. 

She  who  could  (Eliza  W.,  this  is  one  of  her  exploits,  I  shall  not  be  long 
upon  her)  induce  the  Secretary  of  War  to  grant  an  honorable  discharge  to  her 
son  then  a  deserter  from  the  U.  S.  army  lurking  among  the  mountains  of 
Wyoming,  procured  his  appointment  as  Consul  or  Vice  Consul  to  France  in 


59 


reward" for  his  cowardice.  She  is  the  woman  who,  loaded  down  and  harassed 
by  debts,  sought  refuge  from  the  Scylla  of  their  torments  in  the  blandishments 
of  a  second  husband  all  the  way  from  France,  only  to  escape  from  that  entangle¬ 
ment  which  she  describes  as  her  Charybdis,  from  which  she  sought  relief,  by 
divorce.  (I  refer  to  a  letter  which  she  wrote.)  This  is  Eliza  W.  Smith  who 
leads  off  this  long  procession,  and  comes  here  to  attack  this  will.  She  says 
that  her  father  was  unconscious,  that  he  said  “  no”  when  he  was  asked  to  sign 
the  will.  I  will  not  repeat  the  scene  now.  She,  desiring  to  impress  the  court 
with  the  idea  that  she  was  a  very  excellent  woman  and  had  been  all  her  life, 
and  that  she  had  aroused  the  tenderest  emotions  for  herself  in  the  heart  of  her 
mother,  had  said  that  she  was  beloved  by  that  mother  and  that  that  mother 
loved  her  and  that  she  was  an  especial  favorite  of  her  mother.  She  said  that 
her  mother  would  sit  at  the  window  waiting  and  looking  for  her,  wondering 
why  she  didn’t  come,  and  that  she  never  had  trouble  with  her.  And  the  result 
was,  on  cross-examination,  she  gave  a  graphic  description,  and  it  seemed  to 
me  to  be  exaggerated,  it  was  quite  touching,  the  love  she  had  for  her  mother 
and  the  love  the  mother  had  for  her.  Yet  just  at  the  point  where  she  reached 
the  climax  of  her  power  of  description,  when  the  picture  was  drawn  vividly 
and  with  her  shapely  skill,  when  I  could  see  in  my  imagination^  with  the  aid 
of  her  productive  memory  and  inventive  power,  a  domestic  picture  that  was 
quite  interesting,  there  was  handed  to  me  a  letter,  and  I  read  it  to  her,  and 
asked  her  to  look  at  it, — this  letter  which  I  am  going  to  read,  if  your  Honor 
please,  because  with  that  I  can  drop  her. 

“Boston,  Eeb'y  21,  1881. 

Eliza  :  Your  father  handed  me  the  letter  he  received  from  you  to-day,  and  requested  me  to 
answer  it.” 

(I  should  add,  to  make  this  of  full  effect,  that  her  visits  to  her  mother’s 
house  were  frequent,  and  she  was  going  to  and  fro  all  the  time, — the  latch 
string  was  always  out.  ) 

“  I  will  by  saying  that  it  will  not  be  convenient  nor  agreeable  for  us  to  receive  you,  nor  any 
of  your  family  into  our  house  as  visitors.  We  are  a  very  happy  little  family  by  ourselves,  and 
we  do  not  mean  to  be  intruded  upon.  Garry”  (Eliza  W.’s  daughter)  “is  a  stranger  to  me.  I 
have  never  been  acquainted  with  her,  and  I  do  not  wish  to  make  it  now.  Eben,  when  he  was 
here  in  the  summer,  was  a  very  good  boy,  but  what  he  is  now  I  do  not  know,  since  he  has  been 
under  such  an  influence,  where  such  disgraceful  letters,  to  entire  strangers,  have  emanated  from, 
intended  to  disgrace  myself  and  family;  but,  the  wrath  of  man  shall  praise  Him  and  the  re¬ 
mainder  He  will  restrain.  Eliza  Smith.” 

Well,  that  settled  one  question  ;  that  she  would  in  1S7S  swear  one  way, 
swear  to  a  thing  which  in  1861  wasn’t  anything  at  all.  She  swore  her  mother 
loved  her  all  the  way  through,  and  there  is  a  letter  from  her  mother  telling  her 
not  to  cross  her  threshold  !  That  is  all  there  is  in  that.  Perhaps,  may  it  please 
the  Court,  when  this  letter  was  written,  that  mother  knew  that  this  daughter 
had  requested  the  Rev.  Dr.  Neale,  in  1S54,  when  Eliza  W.  Smith’s  husband 
died,  not  to  mention  her  mother  in  his  prayers  to  God  at  the  funeral  of  that 
daughter’s  husband.  She  may  have  heard  that  Eliza  W.  Smith  requested  the 
clergyman  while  praying  at  the  funeral  of  her  own  husband  not  to  mention  in 
his  prayer,  as  is  wont  among  good  people,  the  mother  who  bore  her,  but  I 


6  o 


think  it  was  not  that  simple  incident  alone  which  inspired  that  letter  from  that 
mother  to  her  daughter.  That  letter  showed  that  the  life  of  that  woman,  or 
her  treatment  of  her  mother,  or  her  conduct,  had  been  such  that  she  could  not 
allow  the  contamination  or  the  corruption  or  the  pollution  of  her  presence 
within  her  house,  and  yet,  if  your  Honor  please,  her  testimony  would  have 
given  you  to  believe,  and  the  testimony  was  offered  to  prove  the  fact, — it  was 
offered  to  prove  the  relation  between  them, — that  the  mother  and  she  were  as 
mother  and  child.  Take  the  fact  that  she  and  her  mother  were  as  mother  and 
child,  but  as  a  mother  whose  heart  had  been  either  frozen  by  her  daughter’s 
follies  or  hardened  by  her  daughter’s  crimes  so  that  she  had  for  that  daughter 
neither  love  nor  respect.  “  But  the  wrath  of  man  shall  praise  Him  and  the 
remainder  He  will  restrain.”  Well,  that  restrained  Eliza  from  crossing  that 
threshold,  I  fancy. 

Again,  sir,  upon  this  question  of  the  character  of  Eliza  W.  Smith,  she  swore 
that  Arthur  G.  Smith,  her  son,  carried  away  her  chattels  from  Medford,  that 
she  complained  to  her  father  about  it  and  he  told  her  not  to  blame  Arthur,  be¬ 
cause  Isaac  had  done  it  all.  That  testimony  was  given  in  when  the  attempt 
was  made  by  them  to  show  that  Ebenezer  Smith,  the  father,  distrusted  his  son 
Isaac  T.  Smith,  didn’t  like  him,  aud  as  one  cause  for  the  dislike,  one  circum¬ 
stance  showing  why  he  distrusted  him,  she  repeated  what  my  brother  Drury 
read  this  morning,  and  so  comment  is  unnecessary  upon  what  it  was,  except¬ 
ing  that  she  swore  that  these  things  were  taken  by  Arthur  from  her  house 
before  her  father’s  death  in  1864.  She  swore  that  when  they  were  taken  she 
went  to  her  father  to  complain  of  it  and  her  father  said  to  her,  the  things  hav¬ 
ing  been  taken  away  and  she  complaining  of  Arthur,  “  don’t  blame  Arthur, 
for  Isaac  has  done  it  all.”  Why,  may  it  please  the  court,  the  record  of  the 
court  of  New  York,  the  judgment  roll  of  that  court  shows  that  those  things 
were  not  taken  away  until  1868,  and  that  record  shows  that  she  swore  that 
they  were  not  taken  until  1868,  and  she  swears  that  in  186S  the  things  were 
taken  away,  and  yet  here,  when  it  is  necessary  to  prove  that  her  father  had  no 
confidence  in  Isaac  T.  Smith,  she  swears  that  her  father  was  alive  in  186S  and 
that  he  told  her  a  story  that  he  could  not  have  told  because  he  had  been  in  his 
grave  four  years.  That  is  all  there  is  of  that.  She  swore,  may  it  please  your 
Honor,  that  she  never  knew  or  heard  of  her  father’s  financial  embarrassment, 
and  yet  she,  in  November,  1S60,  received  from  him  the  letter  of  November 
28th  in  which  he  writes  her,  “  I  have  been  so  pressed  for  money  that  I  can’t 
sleep  o’  nights.  Neither  Clapp  nor  myself  can  raise  a  single  dollar,  and  the 
banks  don’t  discount.”  She  testified  as  I  have  stated,  and  letters  contradicting 
her  were  produced.  I  have  one  written  February  9,  1861.  This  is  written  by 
her  father  to  her  : — 

“Box  P.  0.,  Bostox,  Feb.  9,  1861. 

“  Dear  Eliza  : — I  have  not  written  you  so  often  as  I  should,  because  I  have  not  been  able  to  > 
and  am  obliged  to  be  retired  very  much  and  take  care  of  myself,  that  I  may  keep  from  being 
laid  up.  Though  I  am  very  much  burdened  with  cares  and  anxieties,  which  I  am  obliged  to 
neglect,  for  when  I  have  upon  my  shoulders  every  ounce  that  I  can  stand  under,  another  pound 
would  crush  me  down,  and  if  so,  might  not  rise  again  like  a  young  person  full  of  vigor  and 


6i 


health.  'This  then  must  be  my  excuse.  I  deeply  sympathize  with  you,  as  I  expressed  in  a 
former  letter,  and  send  a  paper  as  often  as  I  can.  I  have  nine  lawyers  and  your  Ma  has  two, 
You  may  judge  then  a  little  how  many  suits  I  have  to  defend,  and  duns  too,  without  number, 
some  on  my  own  and  some  on  your  account.” 

Right  at  that  point  I  noticed  that  the  petitioners’  counsel,  in  his  opening,  in 
order  to  make  it  excessively  plain  that  the  old  man  was  the  victim  of  domestic 
terrors,  quoted  that  letter,  dated  in  1862,  in  which  the  old  man  says  he  was 
fighting  for  the  last  dollar.  I  should  think  he  was,  he  had  nine  lawyers,  it  was 
a  pretty  tough  fight.  I  wonder  whether  there  are  any  such  litigious  gentlemen 
now,  and  whether  the  number  nine  is  filled  up.  If  it  is  not,  there  are  more 
who  would  like  to  be  counted  in.  He  says  he  was  fighting  for  the  last  dollar ; 
they  say  he  was  fighting  to  protect  himself  against  his  children  whom  he  loved, 
and  who  loved  him.  Domestic  infelicity  ! — professional  infelicity,  professional 
vicissitudes  and  the  perplexities  of  nine  lawyers  piling  on  that  one  man  in  one 
day  !  I  wonder  he  didn’t  seek  refuge  in  the  Medford  school-house,  the  seminary 
of  West  Medford,  the  shades  of  Mystic  Hall,  where  Eliza  W.  was. 

“  I  have  nine  lawyers  and  your  Ma  has  two.  You  may  judge  then  a  little  how  many  suits  I 
have  to  defend,  and  duns  too,  without  number,  some  on  my  own  and  some  on  your  account. 
These  are  part  of  my  feebleness  (not  medicine.)  Besides,  I  have  just  got  some  friends  to  peti¬ 
tion  the  Legislature” — 

Here  the  old  gentleman  is  trying  to  rescue  himself  from  that  horrid  West 
Medford  property,  which  was  worth  a  million  in  Eliza  W.  Smith’s  estimation, 
and  in  which  he  didn’t  have  a  dollar’s  interest,  according  to  Eliza  W.  Smith’s 
testimony. 

“  I  have  just  got  some  friends  to  petition  the  Legislature  for  a  charter  for  an  Agricultural  Park 
at  West  Medford,  and  the  committee  have  given  the  petitioners  leave  to  withdraw  their  peti¬ 
tion.  I  was  in  hopes  to  have  done  something  through  this  charter  with  that  hateful  property,” — 

Mind  you,  during  all  his  life,  that  property  which  Eliza  W.  swore  was  the 
gem  of  his  estate. 

— “  which  has  been  the  means  of  almost  running  me  out  at  the  little  end  of  the  horn  just  be¬ 
fore  I  can  get  ready  to  die  !  If  I  could  have  gone  to  the  Insane  Asylum  before  I  had  gone  to 
W.  Medford,  it  would  have  been  money  in  my  purse,  if  not  health  to  my  body,  but  I  was  not 
possessed  of  “  madness  and  malignity’  to  get  me  to  the  asylum,  if  I  had  tried,  (and  I  am  sure 
I  never  knew  or  heard  of  any  of  my  ancestors  or  of  blood  relations  that  were  so)  but  it  was 
purely  from  the  desire  to  be  useful  that  carried  me  to  Medford.  You  and  your  family  are 
young  and  healthy,  more  to  be  prized  than  silver  and  gold,  and  we  should  look  upon  our  adver¬ 
sities  as  real  blessings,  intended  for  our  good,  perhaps  to  ward  off  a  greater  evil,  and  make  us 
more  wise.  If  I  should  be  sick,  I  will  let  you  know  of  it.  Aff’y  Father. 

“  P.  S. — I  am  told  that  the  cold  here  this  morning  is  27o  below  zero  !  I  have  not  heard  from 
Medford.  It  is  thought  there  will  be  peace  and  quietness  at  Washington  within  30  days — ‘so 
mote  it  be.’  Gbpa.” 

Eliza  W.  is  one  of  the  parties  who  is  prosecuting  this  suit,  not  a-  nominal 
party  to  the  petition,  but  a  witness  who  volunteered  to  come  here,  in  constant 
attendance  day  by  day,  but  a  real  party  who  expects  to  get  $50,000  if  this  will 
is  broken  up.  She  is  a  party,  she,  who  swore  that  her  father  never  lent  her  a 
dollar,  who  swore  that  he  never  put  a  dollar  into  the  West  Medford  property’, 
who  swore  that  her  mother  loved  her  ;  no  one  of  which  things  is  true,  because 


9 


62 


the  documents  here  were  shown  to  contradict  it ;  she  is  a  party,  she,  who  swore 
that  her  father  was  alive  in  186S,  and  that  he  told  her  about  Isaac  T.  Smith, 
when  in  fact  he  had  been  four  years  dead  in  his  grave,  and  away  out  of  all  her 
complications  and  vexations. 

Another  party  to  this  suit  is  Hazen  J.  Burton,  Jr.  May  it  please  the  Court, 
there  is  something  painful  at  the  sight  of  a  man  standing  in  a  court  of  justice 
and  testifying,  not  according  to  his  recollection,  but  as  he  wishes  it  to  be.  It  is 
no  pleasant  duty  to  charge  upon  a  man  who  has  before  him  apparently  a  long 
life,  either  for  prosperity  or  adversity,  of  usefulness  or  of  worthlessness ;  it  is 
no  pleasing  task,  I  say,  to  apply  to  him  phrases  which  involve  his  character  as 
an  honest  man,  and  as  a  worthy  citizen.  Hazen  J.  Burton,  Jr.,  the  son  of  old 
Hazen  J.  of  1S4S  memory,  makes  statements  under  oath  in  this  court  which 
have  been  proved  to  be  the  baldest  lies  that  ever  were  sworn  to  or  stated  by 
man.  He  stood  up  here,  sir,  and  swore,  on  being  asked — and  this  shows  the 
importance  of  the  statement — “  when  after  1S65  did  you  first  have  reason  to 
believe  that  there  was  fraud  in  this  case,  what  was  tire  fact  that  attracted  your 
attention  ?  ”  “  I  first  knew  it  when  Judge  Hoar  told  me  in  his  office  that  he  had 

evidence  enough  in  his  possession  to  indict  Isaac  T.  Smith,”  Judge  Hoar,  at 
the  time  referred  to,  was  counsel  for  Mrs.  Thorndike  in  the  suit  which  she  was 
resisting,  which  these  same  adventurers  had  brought,  he  was  counsel  resisting 
their  efforts  to  break  the  will  of  Mrs.  Ebenezer  Smith,  and  they  came  to  his 
office,  and  this  man  swore  that  Judge  Hoar  told  him  that  Issac  T.  Smith  could 
be  indicted  at  any  moment.  That  testimony  he  gave  here,  sir,  and  I  was  sur¬ 
prised,  I  was  taken  by  surprise,  for  I  knew  that  if  Judge  Hoar  said  it  he  meant 
it,  and  it  didn’t  cross  my  mind  for  an  instant  that  the  man  would  have  the 
audacity  and  the  wicked  hardihood  to  stand  here  and  swear  falsely,  when  he 
knew  the  character  of  Judge  Hoar  would  bear  him  down  to  eternal  infamy,  un¬ 
less  he  confirmed  his  statement.  The  falsehood  and  perjury  had  not  passed 
from  his  lips  for  ten  minutes  before  the  counsel  for  the  respondents  were  fully 
informed  as  to  the  facts.  Two  days  after,  the  next  day  perhaps.,  Judge  Hoar 
goes  on  to  this  stand,  and  I  ask  him  :  “  Did  you  ever  tell  Hazen  J.  Burton  you 
had  evidence  enough  to  indict  Isaac  T.  Smith?”  And  your  Honor  remembers 
his  answer.  He  said  “  no,  never  :  I  never  had  any  evidence  upon  which  to  in¬ 
dict  him.  Never  had  occasion  to  reflect  on  his  character.  I  never  knew  any¬ 
thing  against  him,  and  I  never  told  that  man  any  such  thing.”  There  was  the 
testimony  of  a  man  who  stands  as  high  as  man  can  wish  to  stand  in  the  confi¬ 
dence  of  this  community  or  any,  Ebenezer  Rockwood  Hoar,  whose  character 
carries  weight  against  an  army  of  Burtons.  Why,  they  flee  before  his  presence 
as  the  clouds  before  the  morning  sun.  They  can  no  more  stand  up.  Did  the 
whole  family  of  Burtons  swear  that  Judge  Hoar  made  such  a  statement  as  that, 
they  could  swear  it  until  they  had  sworn  their  souls  to  purgatory  and  nobody 
would  believe  it.  Why,  sir,  then  comes  the  younger  brother  to  the  rescue. 
Judge  Hoar  has  ruined  his  brother’s  character  for  truth  and  veracity,  he  stands 
convicted  in  the  minds  of  all  who  heard  his  testimony,  he  must  stand  convicted 
in  his  own  mind,  and  in  the  judgment  of  tins  court,  as  afoul  perjurer  and  a  bad 


63 


man,  a  man  who  goes  out  before  his  fellow-men,  who  will  never  trust  him, 
knowing  what  he  has  testified  to  here.  He  is  entitled  to  nothing  but  the  male¬ 
dictions,  or  rather  the  silent  passing  by  of  all  good  men  and  true.  Having 
been  so  extinguished,  so  pulverized,  so  entirely  convicted  of  either  wilful 
perjury  or  a  stupidity  or  ignorance  of  speech,  which  render  his  testimony  in 
this  matter  entirely  worthless,  he  brings  his  younger  brother  to  confront  Judge 
Hoar  and  to  sustain  himself.  Well,  there  are  two  Burtons  against  Judge  Hoar. 
HazenJ.  Burton,  Jr.,  had  said  that  Judge  Hoar  had  said  that  Isaac  T.  Smith 
could  be  indicted,  (but  he  didn’t  sa^  that  the  Judge  said  he  was  going  to  do  it.) 
Judge  Hoar  swore  that  that  was  a  falsehood,  and  the  consequence  was  that  that 
man  perjured  himself.  Now  he  undertakes  to  rescue  himself  from  that  dilemma. 
How  does  he  do  it?  He  brings  forward  George  S.  Burton,  his  brother,  a  feeble 
youth,  who  knows  little,  and  has  testified  to  little  in  this  case.  I  remember  that 
the  words  “  imperious  nature  ”  have  been  applied  to  my  client,  Isaac  T.  Smith. 
I  should  say  that  the  imperious  nature  of  HazenJ.  Burton,  Jr.,  may  have  over¬ 
powered  George  S.,  and  he  brings  him  up  to  the  rescue.  What  does  he  say? 
He  was  there  at  the  interview,  the  two  boys  were  there  in  Judge  Hoar’s  office, 
and  he  says  if  Judge  Hoar  hadn’t  testified  as  he  had  that  morning  he  would 
have  sworn  to  just  what  Hazen  J.  Burton,  Jr.,  had  sworn.  I  don’t  doubt  he 
would.  Lucky  for  him  he  didn’t  have  the  chance,  lucky  for  him  that  he  didn’t 
go  on  to  the  stand  before  Judge  Hoar’s  voice  had  been  raised,  and  was  thus 
saved  one  of  the  perils  which  await  his  elder  brother,  lucky  for  him  that  he 
didn’t  render  himself  a  fit  subject  for  the  other  end  of  the  Court  House,  and 
that  Judge  Hoar’s  voice  was  raised  to  stop  his  downward  career.  He  may 
thank  God  for  saving  him  from  the  companionship  of  his  perjured  brother. 

I  pass  from  that  exploit  of  that  young  man  to  another  little  piece  of  evidence. 
I  don’t  know,  but  I  am  almost  inclined  to  think,  it  is  the  spirit  of  Hazen  J. 
Burton,  Jr.,  that  is  controlling  the  course  ot  this  case  and  that  his  counsel  is 
simply  echoing  his  decrees.  Hazen  J.  Burton,  Jr.,  is  one  of  the  parties  to  this 
prosecution,  he  is  first  mate,  his  father  being  the  captain.  He  is  one  of  the 
parties  who  has  been  exhausting  the  patience  and  the  time  of  this  county  and 
this  court.  He  asked  me  one  day,  sir,  —  his  counsel  did  for  him — whom  I 
was  going  to  put  on  the  stand  the  next  day.  Well,  I  have  never  tried  a  case 
more  above  board  than  I  have  this  in  all  my  life.  I  was  simply  watching  a 
parcel  of  bad  men,  I  knew  that,  —  that  was  -perfectly  clear  to  me,  —  as  bad  as  I 
ever  knew.  I  knew  them.  Watching  them  I  was  perfectly  contented  they 
should  watch  me,  and  when  they  asked  me  whom  I  was  going  to  call  the  next 
day  I  told  them  I  was  going  to  call  Arthur  G.  Smith,  who  is  the  son  of  Eliza 
W.  He  is  the  man  who,  she  said,  stole  her  things  out  there  in  1868,  and  of 
whom  her  father  said  she  must  not  blame  him  because  Isaac  put  Arthur  up  to 
it,  and  the  old  man  had  been  dead  four  years  when  she  said  he  said  it,  —  been 
dead  four  years  when  he  made  this  statement,  been  dead  four  years  before  the 
things  were  carried  away.  That  announcement  was  made  to  them.  I  would 
just  as  lief  they  would  know  what  I  was  going  to  do,  so  long  as  I  could  see 
what  they  were  going  to  do.  I  thought  I  should  detect  them  in  some  of  their 


64 


wicked  chicaneries.  And  I  did  detect  Hazen  J.  Burton,  Jr.,  and  can  convict 
him  of  subornation  of  perjury  or  of  an  attempt  to  suborn  perjury.  I  have 
argued,  and  the  duty  has  devolved  upon  me  to  do  so,  that  he  is  a  perjurer,  and 
I  now  argue  that  he  is  an  attempter  of  subornation  of  perjury.  He  goes  on  to 
New  York.  We  adjourned  on  Wednesday  afternoon.  Think  now,  after  I  had 
announced  on  that  Wednesday  afternoon  that  Arthur  G.  Smith  was  going  to  be 
brought  on  here  by  me  if  I  could  get  him,  on  the  very  next  night,  or  the  night 
after,  this  man  goes  on  to  New  York  and  he  goes  to  the  store  of  this  cousin  of 
his  whom  he  is  not  proven  to  have  seen  for  years  and  years. 

Mr.  Chandler :  He  saw  him  here  a  few  days  before.  Mr.  Loring :  He 
saw  him  here  once,  and  then  Mr.  Arthur  G.  Smith  at  that  same  time  saw  Mr. 
Chandler.  Mr.  Chandler  told  him  he  was  going  to  break  this  will.  Mr. 
Chandler :  No,  sir.  Mr.  Loring :  Told  him  he  was  going  to  break  the 
trusts,  or  something  or  other.  Mr.  Chandler  :  No,  sir.  You  can  put  me  on 
the  stand  if  you  want  to  know  what  I  have  said. 

Mr.  Loring :  I  don’t  want  to  put  you  on  the  stand,  because  I  should  expose 
so  many  things,  which  I  don’t  want  to  do.  He  goes  on  to  New  York  and  he 
goes  to  this  young  man,  this  Arthur  G.  Smith,  who,  may  it  please  your  Honor, 
was  here  one  day,  and  his  statement  corrects  me.  He  was  here  at  one  of  the 
former  hearings  to  hear  this  testimony,  he  is  the  son  of  Eliza  W.,  he  has  a  talk 
with  Mr.  Chandler  and  with  Hazen  J.  Burton,  Jr.  I  didn’t  hear  what  the  testi¬ 
mony  was,  because  I  was  out  of  the  room  at  the  time,  but  Mr.  Chandler’s  name 
was  brought  in.  I  tell  these  gentlemen  what  witnesses  I  am  going  to  put  on  the 
stand  at  the  next  hearing,  and  I  say  I  told  them  on  purpose,  because  I  thought 
they  would  do  something  they  ought  not  to  do.  Hazen  J.  Burton,  Jr.,  goes  on 
to  New  York  the  day  after,  I  will  say,  but  I  am  not  sure, — the  record  will  show. 
He  goes  on  to  New  York  and  hunts  up  this  Arthur,  at  whose  store  he  had  not 
been  before,  whom  I  will  venture  to  say  he  had  not  called  on  in  all  his  life,  he 
goes  to  Arthur  G.  Smith  and  says  to  him  “  I  don't  want  you  to  go  to  Boston  to 
testify  against  us,  I  want  you  to  stay  here  in  New  York  or  else  if  you  do  go  on, 
to  go  on  and  testify  in  our  favor.”  There  was  talk  about  securing  something 
to  Arthur  G.  Smith.  A  certain  $5,000  was  named, — an  assurance  of  guaranty 
from  this  man  to  him,  that  if  he  would  not  come  on  to  Boston  to  testify  — 

Mr.  Chandler :  That  is  not  so,  Mr.  Loring  Mr.  Loring :  I  haven’t  got 
through  my  sentence  yet.  He  doesn’t  correct  me  when  I  say  that  this  man 
tried  to  prevent  his  coming  on  here.  Mr.  Chandler :  The  whole  thing  is  er¬ 
roneously  stated  by  you.  Mr.  Drury :  The  witness  testified  to  it. 

Mr.  Loring:  The  gentleman  says  I  am  not  stating  the  testimony  as  it  is. 
He  says  he  understands  I  don’t.  I  suspect  that  the  party  who  seems,  as  I  have 
said  before,  to  be  running  this  case — his  counsel  acting  as  a  sort  of  second  mate 
— is  the  one  from  whom  the  understanding  must  come.  I  say,  your  Honor, — 
I  challenge  contradiction,  I  shall  get  contradiction  I  have  no  doubt,  I  challenge 
the  proof  of  the  contrary, — that  young  man  went  on  and  wanted  Arthur  G. 
Smith  either  to  stay  in  New  York  or  else,  if  he  came  on  here,  to  come  on  and 
swear  for  him.  Something  was  said  about  $5,000,  something  was  said  about 


65 


guaranteeing  to  him  a  certain  portion  of  the  trust  fund.  Then,  Mr.  Arthur  G. 
Smith  did  say  this,  this  I  remember  :  “  I  shall  take  no  guarantees  under  any 

circumstances  for  any  such  a  purpose.  I  am  going  on  to  tell  the  truth  and  I 
shall  not  be  deterred  from  that  by  your  suggestions  or  intimations.”  He  was 
then  told  by  this  young  man,  “  Well,  if  we  lose  this  case  we  shall  appeal  it, 
we  are  not  going  to  stop  here.”  That  didn’t  deter  him.  I  will  add  one  further 
fact.  I  asked  him  if  he  didn’t  go  on  to  New  York  on  purpose  to  see  Arthur 
G.  Smith  ;  he  said  he  went  on  to  see  the  counsel  in  that  case  of  Eliza  W. 
against  her  son  Arthur,  which  happened  in  1S6S,  about  the  rubbish  which  he 
carried  from  Medford.  Hazen  J.,  Jr.,  is  quite  skilful  and  puts  a  lawyer  to  his 
trumps  to  get  the  truth  from  him.  He  does  not  get  his  skill  from  his  father, 
because  you  can  see  through  his  father  as  you  can  through  the  broad  daylight,  he 
is  empty,  you  can  see  what  he  is  made  out  of.  The  young  man  learns  his  lesson 
well,  he  was  not  to  be  so  easily  handled,  he  said  going  on  to  New  York  to  see 
Arthur  G.  Smith  formed  a  very  little  portion  of  his  visit.  He  didn’t  appear  to 
have  done  anything  while  he  was  there  but  to  have  his  interviews  with  Arthur 
G.  Smith  and  to  see  the  lawyers  in  this  case.  It  was  very  little.  Now  your 
Honor  remembers  that  that  man  who  asks  your  Honor  to  believe  him,  that  man 
who  has  dared  to  stand  here  and  state  to  you  under  oath  things  that  I  argue 
cannot  be  credited  for  an  instant,  that  man  who  swears  he  went  on  not  to  see 
Arthur  G.  Smith,  not  that  that  formed  the  slightest  part  of  his  purpose  in  going 
there,  says,  “  I  took  a  memorandum  of  the  conversations  which  we  had  at  the 
time.”  Well,  if  I  go  on  to  New  York  on  a  special  business  and  I  go  to  a  man 
whom  I  never  called  upon  before  in  all  my  life  and  I  ask  him  in  regard  to  a 
case  which  I  am  marshalling,  and  he  tells  me  certain  things  and  I  set  down 
those  things  in  a  memorandum  book,  it  shows  that  it  was  a  most  singular  co¬ 
incidence  that  I  should  have  stumbled  in  there,  it  shows  I  thought  a  good  deal 
of  the  object  of  that  visit,  it  shows  that  that  visit  formed  some  part  of  the  occu¬ 
pation  of  that  day,  and  it  was  so  important  that  I  took  a  memorandum  of  it. 
Nobody  asked  him  to  show  that  memorandum.  I  had  it  on  my  tongue’s  end, 
but  my  tongue  had  been  so  active  that  I  thought  I  would  not.  I  referred  to  the 
headquarters  of  the  leader  of  this  “  noble  band  ”  as  apparently  not  on  the  sad¬ 
dle,  but  on  the  Stonington  Line,  between  Boston  and  New  York. 

Mr.  H.  J.  Burton,  Jr.  has  apparently  just  returned  from  New  York.  Mr. 
O’Connor,  that  curiosity, — I  am  going  to  think  of  him  over  night  before  I  say 
much  about  him, — saw  this  man  ten  days  ago  for  the  first  time,  had  a  letter  from 
him  since,  and  saw  this  man  again  last  Sunday.  He  apologized  the  first  time 
he  went  there  for  being  there  on  Sunday,  because  he  thought  possibly  Mr.  O’Con¬ 
nor  might  be  a  good,  piously-inclined  Presbyterian,  but  the  second  day  he  hap¬ 
pened  to  come  Sunday  again.  Now  what  did  he  go  on  to  New  York  for?  Why, 
sir,  on  the  hearing  before,  Mr.  Isaac  T.  Smith  had  been  on  here  and  told  his 
story.  Not  the  hearing  before,  but  two  hearings  before.  The  hearing  before 
was  the  time  it  was  intimated  Mr.  Isaac  T.  Smith  didn’t  care  to  come  into  the 
city.  Mr.  Isaac  T.  Smith  would  not  come  into  this  city,  as  I  said,  at  the  beck 
and  call  of  these  parties  unless  it  was  necessary  for  him  to  attend  and  meet  their 


66 


infamous  charges.  I  think  that  the  intimation  that  he  did  not  dare  to  come  is 
pretty  well  disposed  of.  But  he  had  given,  may  it  please  your  Honor,  some 
strong  testimony  in  regard  to  this  will,  and  your  Honor  remembers  that  Mr. 
Chandler,  at  the  last  hearing,  or  the  one  before,  said  he  was  very  anxious  to 
cross-examine  him,  and  if  he  didn’t  cross-examine  him  he  should  produce  a 
large  number  of  witnesses  to  prove  by  them  what  he  should  prove  by  him  if  he 
was  here.  —  Mr.  Chandler:  Not  “  a  large  number.”  —  Mr.  Loring :  Well, 
a  small  number.  I  take  it  back.  He  has  had  Mr.  Smith,  and  not  a  small  num¬ 
ber  of  witnesses,  but  a  number  of  small  witnesses  and  all  this  morning’s  hearing 
was  vouchsafed  to  Mr.  Chandler,  it  was  granted  to  him  by  the  court,  and  we  have 
no  objection  to  it,  and  I  wish  he  could  have  postponed  it  ten  years  and  we  should 
not  have  come  here  again.  I  didn’t  know  what  he  wanted  of  Mr.  Isaac  T.  Smith, 
but  I  was  determined  he  should  have  a  chance  to  try  his  hand  on  him.  Well, 
he  did,  and  he  let  him  alone  as  quick  as  he  did  before.  He  was  here  before,  and 
he  came  to  spend  two  days,  having  learned,  doubtless,  from  his  counsel  at  this  end 
what  a  protracted  habit  of  mind  Mr.  Chandler  had,  and  how  he  extended  investi¬ 
gations  which  he  made  into  a  far  distant  and  remote  point, — so  remote  from  the 
case  that  he  was  trying,  that  there  was  no  knowing  when  he  would  get  through 
the  cross-examination  of  him.  However,  we  gave  him  two  days  ;  we  put  him  on 
the  stand  and  we  examined  him  two  hours,  and,  I  should  say,  in  about  the  same 
proportion,  Mr.  Chandler  cross-examined  him  twenty  minutes  and  dropped  him. 
Burton  goes  on  after  hearing  that  testimony  and  we  find  him  in  close  consulta¬ 
tion  with  Mr.  O’Connor  ;  he  is  one  of  the  small  witnesses  whom  Mr.  Chandler 
brought  us  to-day.  As  I  said  before,  I  will  pass  him.  I  want  one  night  to  think 
of  him.  I  will  come  back  to  him. 

I  have  endeavored  to  give  a  correct  account  and  description  of  the  character 
of  Hazen  J.  Burton,  Jr.  I  know  nothing  about  him  outside  of  this  case,  ex¬ 
cept  that  he  is  a  son  of  his  father.  I  know  of  his  father  outside  of  this  case,  so  do 
a  great  many  others,  perhaps  many  in  the  sound  of  my  voice.  The  young  men 
I  have  known  nothing  of.  I  have  had  to  become  acquainted  with  them  since 
this  cause  began,  and  I  am  dealing  with  the  facts  as  they  appear  here,  forced  so 
to  do  from  professional  duty,  but  not  from  any  taste  I  have  for  any  such  mode 
of  dealing. 

I  have  mentioned  George  S.,  a  feeble  youth,  who  knew  little  and  testified  to 
little,  who  would  have  sworn  that  Judge  Hoar  said  what  his  brother  said  he  did 
if  Judge  Hoar  had  not  sworn  before  him.  The  other  party  is  nobody.  That  is  all. 

Those  are  the  parties  to  this  suit ;  and  having  dealt  with  these  I  will  conclude 
the  few  minutes  left  to  me  by  commencing  my  consideration  of  the  witnesses 
who  support  their  case.  They  are  the  only  witnesses  who  assail  the  will,  Eliza 
W.  Smith  and  Mrs.  Giles.  They  are  the  only  two  people  who  were  present  at 
the  time  of  the  execution  of  the  will,  and  no  others  who  testify  against  the  will 
were  present.  These  two  were  present,  and  so  was  Margaret  Patterson  ;  but 
Margaret  Patterson,  called  by  the  petitioners  themselves,  says  that  the  old 
gentleman  was  in  his  right  senses,  and  that  Isaac  T.  Smith  helped  his  father  to 
write  his  name,  and  so  say  we.  So  Margaret  Patterson  is  with  us.  He  called 


67 


her,  T  doubt  not  he  paid  her,  I  am  glad  of  it,  we  should  have  called  her. — Mr. 
Chandler :  Is  there  any  evidence  of  that,  that  I  paid  Margaret  Patterson? 
Mr.  Loring :  I  say  you  called  her  and  I  have  no  doubt  you  paid  her  the  wit¬ 
ness  fee.  I  have  no  idea  that  you  did  pay  anybody  anything  else,  I  didn’t  inti¬ 
mate  that  you  ever  did.  You  may  have,  I  think,  too  fine  an  appreciation  of 
her  character.  So  I  count  Margaret  Patterson  on  my  side. 

Now  I  have  considered  Eliza  W.  Smith  somewhat  already  as  a  party.  I 
shall  consider  her  somewhat  more  as  a  witness.  She  says  that  her  father  re¬ 
fused  to  sign  this  will,  and  that  he  said  these  words  which  the  counsel  for  the 
petitioners  adopted  or  used  ;  whether  he  used  them  and  she  adopted  them  or 
whether  she  suggested  them  and  he  then  adopted  them,  I  don’t  know.  But  she 
swore  that  when  Isaac  came  into  the  room  and  said  to  her  father  “  here  is  your 
will,”  her  father  said  feebly  “  my  will,  no”  —  I  cannot  imitate  her,  no  man  can, 
and  then  she  says  he  relapsed  into  unconsciousness,  and  then  that  Isaac  took  his 
hand  and  wrote  with  it  that  name,  and  that  the  testator  took  no  part  in  the 
writing  and  knew  not  that  his  name  was  being  written.  That  is  the  testimony 
of  Eliza  W.  Smith  who  stood  by  that  table  on  that  day,  and  she  says  that  was 
what  was  done.  It  was  doubtless  her  story  which  inspired  this  picture  which  I 
now  exhibit  from  the  National  Police  Gazette  of  January  iS.  It  was  doubtless 
this  story  which  she  must  have  told  to  the  learned  counsel  for  the  petitioners 
when  he  framed  his  carefully  and  felicitously  expressed  romantic  story  with 
which  he  regaled  us  on  the  4th  of  December.  It  was  doubtless  that  story  of 
Eliza  W.  Smith’s  which  inspired  this  atrocious  picture  in  one  of  the  illustrated 
papers  of  New  York.  I  offer  it  as  illustration  and  as  argument.  It  discredits, 
more  than  I  can  discredit,  the  abominable  and  disgusting  exaggerations  of  this 
whole  story.  I  point  to  that  as  discrediting  what  they  say  occurred  there.  I 
should  say  without  reading  anything,  because  it  is  not  evidence,  that  this  was 
the  picture  of  a  “  dead  man’s  signature  (and  perhaps  Ebenezer  Smith’s),  a 
wealthy  and  eccentric  gentleman  dies  before  he  can  sign  his  will  and  the  eager 
heirs  guide  the  fingers  of  the  corpse  to  frame  the  coveted  document.”  I  think 
General  Butler  did  announce  the  fact  that  this  was  signed  by  a  dead  man’s 
hand  ;  — he  said  things  as  bad,  if  not  worse.  To  prove  that  picture  is  a  pretty 
serious  matter.  To  make  the  opening  speech  which  was  made  and  not  prove 
it  is  a  more  serious  matter.  The  picture  drawn  I  believe  was  inspired  by  the 
gross  exaggeration  of  witnesses  who  must  have  misled  the  counsel,  for  I  am 
not  ready  to  believe  that  any  member  of  the  Suffolk  bar  could,  with  the  evi¬ 
dence  which  has  been  really  extracted,  have  thought  he  could  prove  what 
was  said  on  the  4th  of  December  here  by  the  present  counsel  for  the  petitioners. 
I  don’t  believe  he  would  have  drawn  such  a  sketch  had  he  not  heard  it  from 
others,  of  course  he  must  have  heard  it  from  others,  and  they  were  the  witnesses 
to  be  produced.  But  I  never  in  the  whole  course  of  my  practice  listened  to 
direct  testimony  in  some  points  supporting  the  allegations  made  in  his  romantic 
address,  which  so  utterly  melted  away  and  turned  to  dross  in  the  crucible  of  cross- 
examination.  There  was  not  enough  left  of  the  evidence  given  for  the  petitioners 
by  Eliza  W.  Smith,  Hazen  J.  Burton,  Sr.,  Hazen  J.  Burton,  Jr.,  Eben  Smith 


68 


(well,  he  didn’t  know  anything)  and  Mrs.  Giles,  —  there  was  not  enough  left 
of  them  to  write  their  epitaphs,  there  was  not  enough  left  of  them  to  bury,  and 
as  to  their  statements  there  was  no  occasion  to  argue  this  case,  may  it  please 
your  Honor.  The  arguments  have  been  made  as  the  case  has  gone  on. 

I  have  now  reached  the  time  of  adjournment,  and  with  your  Honor’s  indul¬ 
gence  I  shall  have  the  honor  of  submitting  what  more  I  have,  in  as  short  time 
as  possible,  to-morrow. 

{Adjourned  till  io  A.  31.,  Wednesday.  January  22,  1879.) 

January  22,  1879. 

May  it  please  the  Court,  I  will  now  resume  my  argument  at  the  point  at 
which  I  paused  last  evening,  at  which  time  I  was  considering  the  character  of 
the  witnesses  produced  to  support  those  accusations  against  my  client,  Mr. 
Smith,  and  against  Dr.  Thorndike,  the  client  of  my  friend  Mr.  Drury.  I  was 
then  considering  the  character  and  conduct  of  Eliza  W.  Smith  with  reference 
to  this  case.  I  had  occasion  to  refer  to  certain  statements  of  hers  while  on  the 
stand,  under  oath,  which  were  so  utterly  inconsistent  with  themselves,  as  to 
stamp  her  whole  testimony  with  the  character  of  absurdity,  if  not  of  wilful 
perjury.  Why,  she  swore  that  with  all  her  indignation  and  wrath  at  the  great 
wrong  which  she  had  witnessed,  she  never  spoke  of  it  to  a  member  of  that 
family  from  that  time  down.  On  the  morning  of  the  day  when  her  father,  just 
at  the  point  of  death,  was  surrounded,  as  she  says,  by  a  wicked  wife  and  two 
evil-minded  children  conspiring  to  defraud  him,  and  to  lead  him  to  do  an  act 
which  he  would  not  have  done  had  he  been  in  his  right  mind,  she  stood  there 
she  says,  amazed,  stricken  with  horror,  indignant,  filled  with  a  righteous 
wrath  at  the  conduct  of  her  mother  and  her  brother  and  sister.  And  she  said 
that,  notwithstanding  her  indignation,  notwithstanding  her  mental  protest 
against  such  a  transaction,  she  never  uttered  a  word  of  it  to  a  member  of  that 
family  from  that  time  down.  Why,  what  is  the  character  and  mental  and  moral 
constitution,  of  that  wnman?  Has  she  a  moral  constitution,  or  has  it  gone 
with  her  wild  schemes  and  enterprises  which  she  swears  were  so  successful  and 
prosperous,  but  which  we  have  proved  to  have  been  so  disastrous,  if  not  infa¬ 
mous?  For  fourteen  years  that  woman  has  known  of  this  wickedness  and 
never  uttered  a  word  of  it  to  a  mortal.  She  reaped  the  fruits  thereof,  she  re¬ 
ceived  $53,000  as  the  spoils  of  that  battle,  she  denounced  it  to  herself,  but  to 
the  world  she  approved  it,  and  when  she  says  she  did  not  approve  it,  she  tells 
another  falsehood  under  oath.  Why  I  wonder  if  she  knows  the  meaning  of 
perjury?  I  wonder  if  her  mind  guides  her  in  the  comprehension  of  it,  or 
whether  she  is  blinded  or  besotted  by  the  lust  for  that  $50,000  which  she  says 
she  is  going  to  get  if  she  breaks  this  will  ?  I  hope  there  is  mercy  somewhere 
and  I  hope  there  is  grace  to  lead  her  to  comprehend  this  wickedness  and  to  re¬ 
pent  it.  If  there  is  not  mercy  there  is  justice,  and  if  there  is  not  grace,  there 
are  the  authorities  of  the  law  to  put  their  hands  upon  such  villainy,  and  even  a 
woman  is  not  safe  from  the  righteous  condemnation  of  a  righteous  Judge,  nor 
from  the  solemn  verdict  of  a  jury  sworn  to  try  a  case,  be  it  of  perjury  or  pil¬ 
fering,  and  to  find  a  verdict  of  guilty  if  the  evidence  so  proves.  She  said  she 


69 


did  not  protest  then,  against  it',  and  why?  Mark,  may  it  please  your  Honor. 
At  this  time  she  was  standing  there  and  had  heard  all  that  had  passed  and 
it  all  and  inwardly  condemned  it  all,  and  Mr.  Chandler  kindly — I  dont  think  he 
intended  to  do  a  favor  to  us — put  this  question  to  her  after  I  had  extracted  from  her 
the  evidence  of  her  indignation  and  wrath  ;  “  Mrs.  Smith,  had  you  entered  your 
protest  at  that  time  would  your  father  have  understood  it?”  “  Oh,  no,  he  would 
not  have  understood  anything  I  said.”  I  asked  her  if  that  was  the  reason  she 
didn’t  protest?  She  said  no,  she  was  speechless.  You  remember  the  cross-ex¬ 
amination  of  her  upon  that  point,  that  condition  in  which  she  found  herself  by 
reason  of  that  shock  ;  speechless  for  a  day  and  a  half  and  never  called  in  a  phy¬ 
sician  although  she  had  never  been  made  speechless  before  in  her  life.  It  she 
had  been  struck  dumb  when  she  went  upon  the  stand,  when  with  the  oath  which 
she  took  before  God  that  she  would  tell  the  truth, — had  she  with  the  first  raising 
of  her  voice  in  this  cause  been  struck  dumb,  she  would  have  been  saved  from 
the  infamous  crime  which  I  say  she  has  committed  here.  I  think  from  this  day 
that  woman  who  at  sometime  in  her  life  has  had  a  power  to  influence  great  men 
if  not  good  ones,  good  ones  if  not  wise  ones, — I  think  from  this  day  her  power 
has  ceased.  I  think  she  is  shorn  of  all  ability  hereafter  to  mislead  and  mis¬ 
guide.  I  think  she  is  known  in  this  community  at  least,  and  that  all  men  and 
all  women  are  safe  from  her  wild  ways.  When  Mr.  Chandler  asked  her  if  her 
father  would  have  understood  her  if  she  had  protested,  she  said  “  no.”  I  asked 
her  this  question  :  “  How  at  that  very  moment  when  you  say  he  had  lost  all 
consciousness  and  sense,  how  at  that  same  moment  when  his  son  asked  him  to 
sign  the  will,  how  did  he  then  know  enough  to  refuse  to  sign  it?”  Within 
the  same  minute  that  she  said  that  the  old  man  was  so  far  gone,  so  nigh  to  his 
last  gasp,  that  he  would  not  have  understood  her  if  she  had  said  “father,  don’t  you 
do  it,”  he  understood  his  son  when  his  son  said  “sign  that  will,”  and  he  said 
“  no,”  meaning  I  will  not.  I  asked  her  how  it  was  that  he  did  happen  to 
understand  Isaac  when  he  would  not  understand  her.  And  her  reply  was  that 
it  was  Isaac’s  imperious  nature  that  enabled  him  to  rouse  his  father  to  a 
temporary  consciousness.  I  asked  her  then  if  her  nature,  aroused  by  the  wrath 
that  possessed  her,  by  the  indignation  that  fired  her  heart  hadn’t  imperiousness 
enough  or  energy  enough  to  rouse  that  father.  Her  reply  was  “  no,  I  was  very 
sick,  I  had  just  got  up  from  lung  fever.”  If  she  has  recovered  from  that  lung 
fever,  let  her  take  precious  care  of  her  health  hereafter. 

This  woman  swore  that  this  signature  was  written  one  or  two  days  after  Dr. 
Storer  and  Dr.  Lewis  held  a  consultation.  She  swore  that  she  sent  for  these 
two  distinguished  physicians,  and  that  they  came.  They  did  not  come.  That 
is  all  the  answer  to  that.  Dr.  Lewis  didn't  come  with  Dr.  Storer,  and  she 
didn’t  send  for  Dr.  Storer,  for  Dr.  Storer  says  Dr.  Thorndike  got  him  to  come 
himself;  and  Dr.  Storer  also  swears  that  he  never  held  a  consultation  with  Dr. 
Lewis  in  all  his  life.  Now  Dr.  Storer  is  a  gentleman  and  an  honest  man.  No 
man,  no  woman  can  say  aught  against  him  or  his  character.  He  is  a  man  up¬ 
on  whom  the  people  of  Boston  rely  in  emergencies  for  good  deeds,  and  he  has 
them  at  hand.  He  is  the  wise  physician,  he  is  a  friend  of  Dr.  Thorndike,  their 
10 


7° 


characters  stand  on  the  same  level,  and  far  removed  above  the  slanders  and  the 
vilifications  that  might  be  attempted  to  be  heaped  upon  them  by  these  bad 
people.  Dr.  Storer  says  he  never  consulted  with  Dr.  Lewis ;  she  says  that  he 
did.  She  says  that  Dr.  Storer  and  Dr.  Lewis  met  there  on  the  8th,  and  that 
the  will  was  signed  two  or  three  days  after.  Dr.  Storer  was  there  on  the  Sth, 
but  the  will  was  signed  before  that  visit,  and  she  is  disposed  of  there. 

It  seems  to  me,  may  it  please  your  Honor,  that  that  woman  is  insane,  if  she 
is  not  wicked.  Her  description  of  that  horrid  scene,  wrhich  so  paralyzed  her, 
at  her  father’s  bed-side,  is  in  entire  conflict  wfith  the  truth.  The  fact  is  she 
stood  there  by  the  bed-side  of  her  dying  father,  one  of  the  children  who  then 
was  accepting  his  bounty,  and  ending  all  strife  between  them.  She  wanted  this 
will  made,  she  got  $17,000  more  by  it  than  by  the  will  of  August,  1864.  It  was 
Sarah’s  codicil  which  had  excited  uneasiness  in  her  mind.  The  will  was 
drawn,  the  whole  family  was  satisfied  with  it,  not  including  the  Burtons  who 
never  were  included,  beyond  the  sum  of  $500,  by  their  grandfather, — and  these 
children  had  nothing  to  do  with  that.  I  say,  then,  she  had  got  her  codicil  as 
well  as  Sarah,  and  with  apparent  acquiescence  pledged  herself  to  harmony  and 
peace  from  that  time.  By  that  will  all  dissension  between  the  members  of  that 
family  was  disposed  of  as  they  understood  it  When  she  says  she  was  horrified 
she  tells  a  falsehood.  She  came  in  from  Medford  on  purpose  to  effect  the 
making  of  that  will.  She  horrified  at  that  will!  Why,  in  1865,  she  conveyed 
nearly  all  her  interest  in  that  will  to  Edward  Bangs,  in  consideration  that  her 
two  sons,  Thomas  P.  Smith  and  Arthur  G.  Smith,  “  shall  abandon  their  oppo¬ 
sition  to  the  probate  of  the  will  of  my  late  father,  Ebenezer  Smith,  dated  Octo¬ 
ber  5,  1S64.”  She  horrified  at  that !  Why,  she  was  willing  to  change  her 
estate,  absolute  under  it,  to  a  life  estate  for  the  sake  of  removing  litigation 
which  others  had  brought  in  their  efforts  to  break  it  up.  I  need  waste  no  more 
breath  upon  that.  The  facts  give  stronger  argument,  without  comment.  That 
conveyance  which  she  made  as  an  inducement  to  her  children  to  withdraw  their 
opposition,  provided  that  the  expenses  of  their  lawyers  should  be  paid,  and  that 
all  other  sums  should  be  paid  which  were  needed  to  buy  off  other  litigants. 
That  I  didn  t  know,  until  I  re-read  this  paper  last  night.  She  not  only  pro¬ 
vided  that  the  lawyers  who  were  employed  by  Thomas  and  Arthur  should  be 
paid,  but  that  all  other  sums  should  be  paid  out  of  her  share  of  that  property 
which  were  necessary  to  buy  off  other  litigants.  Well,  she  was  spending  a 
good  deal  of  money  to  stop  any  opposition  to  a  will  which  she  now  says  she 
always  did  oppose,  and  she  knows  she  never  did  oppose  it  in  her  life. 

I  have  noticed  the  fact,  may  it  please  your  Honor,  that  the  only  two  witnesses 
of  the  scene  of  October  5,  1S64,  who  support  the  petitioners  by  their  fictions, 
or  rather  who  attempt  to  support  them,  were  Eliza  W.  and  Mrs.  Giles.  This 
rule  prevails,  that  if  a  witness  contradicts  himself  or  herself,  his  or  her  testimo¬ 
ny  is  questioned  ;  and  if  his  or  her  contradiction  is  such  as  to  convince  one  that 
there  is  no  dependence  to  be  placed  upon  anything  which  he  or  she  says,  that 
witness  steps  out  of  the  case.  Well,  Eliza  W.  Smith  stepped  out  of  this  case 
before  she  had  been  in  it  fifteen  minutes,  under  the  hands  of  the  cross-examiner. 


71 


She  travelled  up  to  her  eyes  in  filth  and  slander  and  perjury  on  the  direct 
examination,  but  the  instant  she  was  touched  by  the  cross-examiner  she  stepped 
down  and  out.  She  contradicts  herself,  she  is  all  contradiction,  and  she  is 
nothing  if  she  is  not  contradiction.  She  cannot  and  did  not  state  two  sentences 
consecutively  without  the  latter  flatly  contradicting  the  predecessor.  She  once 
had  the  power  of  persuasion,  but  she  has  lost  all  power  of  telling  the  truth, 
she  has  lost  all  power  of  statement  except  that  power  of  statement  which  leads 
her  to  misstate,  and  so  to  state  that  you  cannot  make  anything  out  of  what  she 
has  said  if  you  listen  half  an  hour  to  her  talk.  In  one  breath  she  swears  that 
her  father  never  aided  her  save  by  his  counsel  and  advice.  Her  father  was  her 
counsellor  and  adviser,  but  he  never  aided  her  pecuniarily,  except  that  he  may 
have  given  her  five  dollars,  and  perhaps  at  one  time  loaned  her  $500 — ,  I  don’t 
think  she  said  it  reached  near  that  sum.  She  swore  distinctly  that  her  father 
never  put  a  dollar  in  the  West  Medford  property,  she  swore  distinctly  that  her 
father  never  aided  her  financially,  and  then  the  last  statement  that  she  made 
when  she  began  to  wander  from  the  point  to  which  I  had  called  her  attention 
in  cross-examination,  after  she  had  answered  my  question  as  she  pleased,  was 
when  she  went  off  on  a  tangent  to  discourse  herself,  and  what  did  she  say?  I 
was  glad  when  she  started,  I  knew  she  would  get  into  trouble  before  she  got 
through,  and  she  said  something  which  I  had  been  trying  to  get  from  her 
in  two  days’  cross-examination,  and  had  failed  utterly  and  entirely  to  get.  I 
tried  to  find  out  from  her  whether  she  had  ever  drawn  a  dollar  from  her  father, 
and  she  swore  she  never  did.  But  here  at  the  last  moment,  and  in  her  almost 
farewell  to  the  court,  ( my  brother  Chandler  having  recalled  her  for  the 
pleasure  of  exhibiting  her  or  of  hearing  some  more  of  her  chatter,  )  she  said, 
on  that  little  explanation  which  she  made  on  her  own  hook,  that  she  always 
drew  on  her  father  as  o?ic  would  draw  tifon  a  bank.  Those  were  her  words. 
I  make  no  comment  upon  them.  She  swears  his  counsel  was  all  his  aid,  and 
she  writes  for  money,  and  for  nothing  else,  savoring  her  petitions  with  what 
her  father  calls,  in  a  letter  which  was  read,  written  by  him  to  her  son  Tom, 
who  was  her  agent  and  financial  man,  “white-wash  and  soft-soap.”  I  quote 
from  his  letter.  She  swears  in  1879,  that  she  was  struck  dumb  and  speechless 
by  the  dreadful  crime  committed  by  her  mother,  her  sister,  Mrs.  Thorndike, 
and  her  brother  Isaac  T.  Smith,  and  she  gives  the  damning  lie  to  this  by  her 
conveyance  of  September  20,  1865,  to  which  I  have  just  referred.  And  so  her 
tongue  continues  to  the  end,  in  conflict  with  her  long  time  previous  prolific 
pen,  swearing  that  she  never  owed  her  father  one  dollar,  or  not  more  than 
some  paltry  five  or  ten  dollars,  having  given  her  father  her  notes,  memoranda 
of  which  we  produced  in  court,  signed  by  her,  for  forty  or  fifty  thousand 
dollars.  Put  those  two  facts  together  and  reconcile  them  if  you  can.  I  remem¬ 
ber  once  or  twice,  if  not  more,  asking  her,  when  such  facts  as  those  were 
brought  together  and  presented  to  her,  to  reconcile  them,  and  she  said  she 
didn’t  see  that  there  was  any  discrepancy,  she  couldn’t  see  that  there  was  any 
discrepancy,  any  difficulty  in  reconciling  them,  there  was  nothing  to  reconcile. 
No,  there  was  not  Nothing  could  be  reconciled. 


72 


Well,  I  studied  that  character  when  she  was  on  the  stand  and  when  I  got 
through  with  my  studies  I  didn’t  know  anything  about  it.  I  could  not  fathom 
the  mystery  of  her,  except  one  thing,  I  knew  she  falsified  to  the  last.  The  op¬ 
erations  of  her  mind  were  peculiar  to  such  a  degree  that  they  perplexed  me, 
and  I  could  not  help  thinking  of  her  after  I  left  the  court-room.  I  shall  forget 
her  pretty  soon  I  hope,  I  have  got  tired  of  the  burden.  I  don’t  want  to  re¬ 
remember  her,  it  is  a  painful  spectacle,  and  a  painful  retrospect  it  will  be  to 
think  of  that  bad  old  woman  who  comes  here  swearing  to  lies  enough  to  send 
her  soul — somewhere.  She  said  she  stayed  day  and  night  in  her  father’s  room 
from  the  time  she  came  from  Medford.  She  swore  she  stayed  in  that  sick  room 
day  and  night  until  the  will  was  made,  and  then  as  soon  as  the  will  was  made 
(she  having  got  all  she  wanted)  she  left  the  poor  old  man  to  die, — left  him  to 
the  tender  mercies  of  people  whom  she  denounced  as  conspiritors  and  bad, — 
left  him  to  the  tender  mercies  of  the  “  wicked  Mrs.  Thorndike”  and  her  wick¬ 
ed  old  mother  whom  she  loved  so  well,  nevertheless.  She  did  leave  that  house, 
may  it  please  your  Honor,  and  she  didn’t  stay  there  one  night,  because  her 
mother  wouldn’t  have  her  there.  When  she  went  there,  she  says  herself — I  ex¬ 
tracted  that  from  her, — that  she  and  her  mother  did  have  some  words,  and  she 
went  away.  And  there  is  another  time  when  she  refers  to  the  disposition  on 
the  part  of  the  rest  of  the  family  to  exclude  her  from  the  premises, — she  said  if 
she  had  spoken  to  her  father  at  the  time  of  the  execution  of  the  will,  they  would 
have  put  her  out  of  the  house.  I  don’t  blame  them  when  they  did  put  her  out 
of  the  house,  her  who  could  ask  the  Rev.  Dr.  Neale,  at  the  solemn  service  of  her 
husband’s  burial,  not  to  mention  before  the  throne  of  grace  the  name  of  her 
mother  who  bore  her.  She  is  not  a  fit  companion  for  Christians  and  good  peo¬ 
ple.  She  didn’t  stay  there  in  her  father’s  room  at  all.  She  was  asked  whether 
that  will  was  read — I  beg  your  Honor’s  note  of  that, — she  was  asked  whether 
that  will  was  ever  read  to  her  father,  and  she  says  she  does  not  believe  it  ever 
was,  she  didn’t  see  how  it  could  have  been,  because  she  was  in  the  room  all  the 
time  from  the  time  she  went  there  until  the  will  was  made  and  she  didn’t  hear 
it  read,  and  her  direct  testimony  was  almost  directly  a  positive  statement  that 
the  will  was  not  read,  but  upon  Mr.  Drury’s  cross-examination,  or  somebody’s — 
it  didn’t  make  much  difference  who  touched  her,  she  always  exposed  something 
which  she  had  tried  to  conceal  by  the  direct  story, — she  said  she  couldn’t  tell 
whether  the  will  was  read  or  not,  and  it  is  true  she  could  not  because  she  didn’t 
know  anything  about  it. 

The  contradictions  of  Mrs.  Giles  in  her  testimony  have  been  referred  to.  I 
have  called  your  attention  to  some  contradictions  of  Mrs.  Smith  in  her  own  tes¬ 
timony,  and  I  ask  your  Honor’s  attention  now  to  the  conflict  which  these  two 
angels  of  mercy  get  into  between  themselves,  how  they  cross  each  other’s  path 
at  every  turn.  These  two  people  are  here  to  swear  that  this  will  was  not  signed 
properly  ;  they  are  here  to  satisfy  you  that  what  Isaac  T.  Smith  said  on  the 
stand  here  was  not  true  ;  they  are  here  to  swear  that  he  did  what  he  never 
did  do.  Now  can  we  trust  them ?  Can  we  take  them  together  as  guides?  I 
think  your  Honor  has  been  satisfied  that  you  will  never  be  guided  by  either  one 


73 


separately.  Let  us  take  them  together.  Neither  one  of  them  as  a  single  team 
is  capable  of  pulling  this  load.  Let  us  harness  them  together  and  see  how  they 
pull.  Well,  they  pull  right  at  cross  purposes;  when  one  pulls  back  the  other 
jumps  forward  ;  and  so  they  have  been  going  along  until  they  have  lost  all 
power.  And  thus  they  do  it.  Eliza  swears  her  father  said  “  no  Giles  swears 
he  didn’t  refuse  to  sign  the  will.  Eliza  swears  to  her  own  surprise  at  seeing 
the  mother  and  Isaac  and  Mrs.  Thorndike  come  into  the  room  ;  Mrs.  Giles 
swears  that  she  came  into  the  room  with  the  others  and  with  the  same  purpose. 
Eliza  swears  she  was  speechless  with  indignation,  and  Giles  swears  they  were 
all  harmonious.  And  there  are  numerous  other  instances  which,  if  my  brother 
Drury  sees  fit,  he  will  give  the  court,  I  have  no  doubt,  and  I  wish  he  would 
take  the  case  at  this  time  to  go  on,  but  I  have  a  little  more  to  say.  That  is  a 
wise  proverb,  may  it  please  the  court,  that  11  liars  should  have  long  memories.” 
When  Hazen  J.  Burton,  Jr.,  whose  infamy  I  have  sketched,  concocted  this  story 
with  the  help  of  that  aunt  Eliza  W.,  when  he  saw  her  for  the  first  time  for  many 
long  years,  at  the  Essex  House  in  Salem  in  1876,  he  and  she  blindly  put  their 
necks  into  the  noose  which  they  contrived  for  others,  and  they  have  hanged 
themselves.  These  two  thought  that  time  had,  with  its  ceaseless  tide,  wiped 
the  footprints  from  its  sands,  but  they  were  too  deeply  driven  in,  and  as  vividly 
as  Macbeth  saw  the  ghost  of  the  murdered  Banquo,  they  have  seen  these  long- 
forgotten  facts  pointing  their  way  to  the  horrors  of  their  crime. 

Edward  D.  Sohier,  known  to  us  all  for  his  power  of  invective, — and  I  wish 
he  occupied  my  place  now,  with  his  wondrous  wit,  his  eloquence  and  his 
integrity, — he  recorded  upon  a  stray  bit  of  paper  the  statements  of  Mrs.  Giles 
fourteen  years  ago,  and  they  are  here  to  contradict  her.  I  will  not  read  them, 
I  will  leave  that  to  brother  Drury,  if  he  chooses.  Also,  your  Honor  well  re¬ 
members  the  testimony  of  Mr.  Sohier  on  the  stand,  who  produced  this  old 
paper  which  he  hunted  up  among  his  waste  basket  or  waste  paper,  and  it  was 
read  to  your  Honor,  and  he  testified  and  he  contradicted  Mrs.  Giles  utterly  and 
entirely,  and  that  is  enough  to  ruin  any  witness.  When  a  man  of  Mr.  Sohier’s 
clearness  of  perception,  and  high  integrity,  states  distinctly  that  she  said  one 
thing,  and  she  says  another,  that  disposes  of  that  witness  just  as  thoroughly  as 
the  witness  is  disposed  of  who  swears  that  Judge  Hoar  said  on  a  certain  day 
a  thing  which  Judge  Hoar  comes  and  swears  he  never  said.  Judge  Hoar  and 
Edward  D.  Sohier  are  of  themselves,  when  they  testify  to  facts,  enough  to  ruin 
the  character  of  witnesses  testifying  to  the  contrary,  and  enough  to  ruin  a  case 
supported  by  those  witnesses.  And  the  two  physicians  who,  on  the  8th  of 
October,  1864,  consulted  together,  were  alive  to  tell  some  facts.  And  so  these 
two  women  put  the  signing  of  that  will  on  the  9th  or  10th.  They  both  agree 
in  that,  but  the  will  dates  the  5th,  and  so  this  obstacle  was  to  be  overcome,  and 
how  was  it?  Confronted  with  this,  Mrs.  Giles  dodged  the  issue  by  pleading 
ignorance  of  dates,  refusing  to  swear  to  any ;  while  Eliza,  more  desperate, 
could  only  account  for  it  on  the  supposition  that  Isaac  had,  out  of  all  the  law¬ 
yers  of  Boston — all  strangers  to  him — happened  to  hit  on  the  one  man  who  was 
afterwards  named  by  his  mother  or  sister  ;  that  he  went  to  him  October  5th, 


74 


and  obtained  a  will  which  was  in  exact  accordance  with  what  happened  to  be 
agreed  upon  by  the  family  in  their  conference,  five  days  later ;  that  he  kept 
this  magical  will  in  his  pocket  from  October  5th  to  October  10th,  and  then 
when  it  marvellously  happened  that  exactly  such  a  will,  verbatim  et  literatim , 
was  agreed  upon,  and  the  one  man  of  all  the  lawyers  in  Boston,  was  named  to 
draw  the  will,  whom  Isaac,  by  mystical  foreknowledge,  had  divined  would  be 
named, — that  then,  on  this  10th  of  October,  with  this  will  still  in  his  pocket, 
he  left  the  house  and  wandered  around  the  streets  of  Boston  for  an  hour  or  two, 
and  then  pretended  that  he  had  been  to  Rollins  and  got  the  will  drawn.  Does 
not  this  statement  on  its  very  face  bear  the  clear  impress  of  lunacy?  Yes. 
Why,  these  petitioners  have  spent  their  strength  in  piling  up  statements  about 
Isaac  T.  Smith.  We  have  heard  of  his  great,  strong,  imperious  nature,  of  his 
force  of  character,  of  his  power  to  intimidate  and  control,  and  yet  they  allow 
their  principal  witness,  the  pivot  on  whom  their  whole  case  rests,  to  prove  her 
insanity  by  charging  this  man,  as  they  and  she  depict  him,  with  a  proceeding 
so  silly  that  I  venture  to  say  the  petitioners’  attorney,  desperate  as  he  is,  will 
not  venture  to  support  it  in  his  closing  speech.  I  venture  to  say  it  merely,  but 
I  don’t  undertake  to  say  what  he  will  say.  I  will  wait  till  he  says  it. 

But  there  is  another  and  more  fatal  contradiction,  to  which  we  now  refer. 
Unless  Isaac  T.  Smith  was  in  Boston  on  the  10th  of  October,  1S64,  their  whole 
story  is  shown  to  be  a  lie.  They  doubtless  thought  that  after  fourteen  years,  it 
could  not  be  shown,  except  by  his  statement,  which  they  were  prepared  to 
swear  down,  that  he  was  not  here.  Now  the  difficulty  of  proving  a  date,  after 
an  interval  of  fourteen  years,  is  well  known  to  your  Honor,  and  to  all  who 
have  occasion  to  consider  matters  in  the  course  of  legal  investigation.  But  that 
Providence  which  works  for  justice  has,  in  a  singular  and  striking  manner, 
given  us  a  proof  which  these  falsifiers  did  not  know  of,  and  which  they  could 
not  assail.  The  corporate  records  of  the  Metropolitan  Savings  Bank  of  the  city 
of  New  York,  made  in  the  ordinary  course  of  business, — proof  of  the  highest 
order, — have  been  produced,  and  at  the  reading  of  the  deposition  of  John 
Russell,  cashier  of  the  bank,  the  whole  of  this  edifice  of  fraud  and  perjury, 
which  these  reckless  blackmailers  had  erected,  fell  into  ruins.  Unless  Isaac  T. 
Smith  was  in  Boston,  October  10th,  their  story  is  a  lie.  That  he  was  not 
here  is  proven,  not  only  by  his  own  oath,  which,  I  submit,  is  sufficient  to  satis¬ 
fy  any  intelligent  man,  but  by  the  records  of  the  bank  in  New  York,  which 
conclusively  show  that  when  they  say  he  was  in  Boston  executing  this  will,  he 
was  really  in  New  York,  attending  to  his  business  there.  We  might  well  stop 
here,  and  against  their  whole  concoction  of  perjury  or  insanity,  point  only  to 
this  simple,  unshaken  record,  which,  like  the  touch  of  Ithuriel’s  spear,  detects 
their  plausible  disguise  and  exposes  the  monstrous  falsehood  lurking  under¬ 
neath. 

But  before  I  conclude  my  consideration  of  the  testimony  given  in  by  their 
witnesses,  I  desire  to  make  a  few  feeble  remarks  upon  the  subject  of  Mr.  O’Con¬ 
nor,  who  arrived  from  New  York  just  in  time  to  come  in  to  the  rescue  of  their 
falling  fortunes.  The  petitioners’  counsel  had,  with  mighty  pomp,  at  the  last 


75 


hearing,  announced  his  intention  of  bringing  witnesses  here  with  regard  to  Mr. 
Isaac  T.  Smith.  I  think  he  said  he  could  demolish  him.  He  said  that,  as  Mr. 
Smith  was  absent,  and  it  was  intimated  that  he  never  would  make  his  appear¬ 
ance  here  again.  This  intimation  was  made  for  certain  reasons  best  known  to 
the  counsel.  He  said  that  if  Mr.  Smith  didn’t  come  he  was  going  to  have  some 
witnesses  here  from  New  York  bearing  down  upon  him.  Well,  Mr.  Hazen  J. 
Burton,  Jr.,  made  another  trip  over  the  New  York  and  Boston  road  by  way 
of  Stonington,  he  made  another  excursion,  he  went  on  another  hunt,  and  again 
on  the  Sabbath  day,  travelling  round,  he  reaches  Brooklyn.  Whether  he  went 
into  the  slums  and  sought  there  for  proper  instruments  of  his  wickedness  we 
know  not,  but  he  succeeded  in  finding  one  from  the  heights  of  Brooklyn  whom 
he  thought  it  worth  while  to  bring  on  here.  I  presume  he  paid  that  man’s  ex¬ 
penses,  or,  perhaps,  promised  to.  I  presume  it  cost  him,  however,  the  money 
that  was  needed  to  pay  his  fare  from  New  York  to  Boston  and  his  board  and 
lodging  while  here,  and  it  was  a  good  investment  for  us.  I  say  they  brought 
over  from  New  York  Mr.  O’Connor.  And  who  is  he?  Why  he  is  the  deadly 
enemy  of  Isaac  T.  Smith.  He  is  a  man  who  got  a  thousand  dollars  of  him  in 
1867  and  paid  him  six  cents  on  the  dollar,  although  Mr.  Smith  and  all  the  other 
creditors  refused  to  aceept  the  hundred  cents  which  he  offered  them.  He  finally 
preferred  to  gratify  them  by  going  into  bankruptcy  and  paying  six  cents  on  the 
dollar,  and  from  that  time  he  found  Mr.  Isaac  T.  Smith  out.  Up  to  that  time 
he  hadn’t  found  him  out  and  had  thought  he  was  a  good  man  ;  and  ever  since 
that  time  he  thought  he  was  a  bad  man,  because  Mr.  Isaac  T.  Smith  told  him 
he  thought  he  was  a  swindler.  That  is  all  there  is  to  that.  Any  man  who  oc¬ 
cupies  the  position  Mr.  Smith  does  would  be  likely  to  make  a  few  enemies.  A 
man  without  enemies  is  almost  an  anomoly.  It  reminds  me  of  the  sentiment, 
“  Be  thou  as  chaste  as  ice,  as  pure  as  snow,  thou  shalt  not  escape  calumny.” 
No,  not  when  there  are  O’Connors  about.  And  the  world  is  full  of  just  such 
people  ready  to  catch  at  the  whispers  or  the  cries  of  wicked  men  against  their 
neighbors,  and  to  carry  them  about  in  their  pockets,  perhaps  get  affidavits  of 
them,  and  go  to  the  bank  over  which  the  good  man  has  presided  for  fourteen 
years  or  more  and  tell  the  directors  that  there  is  a  will  case  going  on  here  in 
Boston  and  they  had  better  not  have  him  for  president.  Shame  on  such  a  meth¬ 
od  of  poisoning  public  opinion,  and  damaging,  or  attempting  to  damage,  the 
characters  of  good  men. 

Mr.  Chandler :  No  evidence  of  that,  Mr.  Loring.  Mr.  Loring :  Of  what? 
Mr.  Chandler :  No  evidence  of  Mr.  Hazen  J.  Burton,  Jr.,  approaching  the 
trustees  and  requesting  them  not  to  re-elect  Isaac  T.  Smith  as  president. 

Mr.  Loring :  I  put  Hazen  J.  Burton,  Jr.,  and  the  man  O’Connor  in  the 
same  boat.  What  O’Connor  did  he  learned  from  Hazen  J.  Burton,  Jr.,  what 
he  did  Mr.  Hazen  J.  Burton,  Jr.,  did,  I  argue,  and  if  anybody  thinks  he  did  not, 
they  are  welcome  to  the  thought.  If  this  O’Connor  wasn’t  crammed  to  the 
muzzle  with  the  foul  slanders  of  Hazen  J.  Burton,  Jr.,  and  if  he  didn’t  dis¬ 
charge  them  into  that  bank  meeting  of  directors  because  Hazen  J.  Burton,  Jr., 
wanted  him  to,  then  he  did  it  because  he  himself  wanted  to,  and  then  he  came 


76 


on  to  Boston  because  he  wanted  to,  and  then  he  went  on  the  stand  because  he 
wanted  to,  and  then  he  testified  because  we  wanted  him  to,  and  that  was  the 
time  when  we  wanted  him  to  do  something  and  he  did.  It  is  not  remarkable 
that  O’Connor  should  be  an  enemy  of  Mr.  Isaac  T.  Smith.  Why,  Hazen  J. 
Burton,  Sr.,  makes  out  the  Lawrences,  the  Frothinghams,  and  James  W.  Page 
and  old  Mr.  Sam.  T.  Coolidge, — I  forget  the  others,  but  many  more  of  the  same 
character  and  class, — he  makes  them  all  blackmailers. 

Mr.  Chandler.  No,  sir.  Mr.  Loring.  He  said  he  was  indicted  that  they 
might  blackmail  Mr.  Ebenezer  Smith,  and  force  him  to  pay  his  debts.  He  went  on 
to  the  stand  and  charged  that  long  catalogue  of  worthy  men,  who  were  the  pride 
of  Boston  at  that  time,  and  whose  memory  is  cherished  by  all  men  now,  and 
whose  name  and  fame  have  given  us  a  name  abroad  for  integrity  and  honor, — 
Hazen  J.  Burton,  Sr.,  goes  on  to  the  stand  and  swears  that  they  blackmailed  his 
old  father-in-law,  Ebenezer  Smith.  That  is  his  testimony.  Mr.  Chandler .  No, 
sir;  he  specifies  the  ones,  he  doesn’t  bring  them  all  in  Mr.  Loriaig.  He 
doesn’t  specify  who  blackmailed  Mr.  Smith.  He  specifies  who  perjured  him¬ 
self,  that  is  the  specification  ;  the  charge  of  blackmailing  he  brought  against  the 
whole  party  ;  the  charge  of  perjury  he  brought  against  Mr.  Samuel  T.  Coolidge 
of  Coolidge  &  Haskell.  Mr.  Chandler.  The  charge  of  blackmailing  was 
against  the  assignees  ;  the  charge  of  perjury  was  against  Mr.  Coolidge  only. 
Mr.  Loring.  The  charge  of  blackmailing  was  against  the  creditors,  who  all 
attempted  to  blackmail  Mr.  Ebenezer  Smith,  and  the  charge  of  Mr.  Chandler  is 
not  true.  Mr.  Chandler.  You  had  better  look  at  the  short-hand  reports.  Mr. 
Loring.  Look  at  your  short-hand  reports,  and  you  will  find  it  just  as  I  have 
stated.  It  was  not  strange  that  Mr.  Hazen  J.  Burton,  Jr.,  going  onto  New 
York,  could  find  some  man  who  thought  evil  of  Mr.  Isaac  T.  Smith. 

So,  after  the  fearful  announcement  of  his  counsel,  we  waited  to  see  what  could 
possibly  be  raked  up  from  all  the  slums  and  gutters  of  New  York  against  Mr. 
Smith.  The  day  came,  and  the  court  assembled, — and  it  is  but  doing  justice  to 
the  petitioners’  counsel  to  say,  that  he  announced  that  his  case  was  closed  with¬ 
out  producing  any  such  evidence.  But  a  suggestion  coming,  perhaps,  from  his 
worthy  associate  and  client  that  there  was  a  little  more  mud  to  throw,  a  Boston 
Judge  and  a  Boston  audience  were  regaled  by  the  spectacle  of  O’Connor.  And 
as  he  stepped  upon  the  stand  I  feel  assurred  that  the  same  thought  struck  your 
Honor  as  it  did  the  audience  and  myself :  Why  here  is  a  twin  brother  of  Burton, 
senior  !  In  looks,  in  manner,  in  life,  still  more  in  character,  the  resemblance 
was  complete.  He  didn’t  think  well  of  Isaac  T.  Smith.  He  hated  him  as  the 
devil  hated  holy  water.  Well,  Mr.  Smith’s  son  took  hold  of  him  to  cross- 
examine  him,  and  he  shook  him  as  a  terrier  would  shake  a  rat,  and  with  the 
same  results.  He  was  left  lifeless  as  a  witness.  Well,  who  is  this  O’Connor  by 
his  own  confession  ?  A  bankrupt,  accused  of  fraud  ;  president  of  a  safe-deposit 
company,  who  was  requested  to  resign,  and  did  resign  ;  clerk  in  a  life  insurance 
company,  who  was  discharged.  No,  he  said  he  wasn’t  discharged — he  was  only 
requested  to  leave  at  once.  This  is  a  distinction  as  fine  as  that  of  the  man  who 
said  he  wasn’t  kicked  down  stairs,  he  was  kicked  at  the  top  and  fell  down  of  his  own 


77 


accord.  A  debtor  of  Isaac  T.  Smith,  whom  he  had  paid  six  cents  on  the  dollar  ; 
the  applicant  for  a  position  in  Mr.  Smith’s  bank,  which  Mr.  Smith  as  an  honest 
man  opposed  giving  ;  a  trustee  whom  the  depositors  had  tried  to  get  a  court  to  re¬ 
move — in  short,  a  sneak,  a  fraud,  a  worthless  man,  whose  enmity  is  an  honor  to 
Isaac  T.  Smith.  And  this  is  the  only  testimony  which  by  all  their  endeavors  they 
have  raked  and  scraped  against  my  client.  I  wish  them  joy  of  their  witness. 

With  one  word  more  I  leave  them.  They  have  given  to  this  court  falsehood 
instead  of  truth,  or  else  the  visions  which  issue  from  the  ivory  gate  of  dream¬ 
land.  But  I  deny  to  them  this  latter  excuse  or  palliation  for  their  false  swear¬ 
ing.  They  have  testified  under  no  delusion.  They  have  substituted  not  dreams 
and  imaginings  for  memory’s  truthful  records,  but  the  foul  products  of  a  desire 
to  get  gain.  Money  they  call  for,  not  heeding  how  so  long  as  it  is  gotten. 

And  now,  may  it  please  the  Court,  I  regard  it  as  utterly  unnecessary  for  me 
even  to  refer  to  the  testimony  which  has  been  offered  by  the  respondents,  in 
order  to  establish  the  position  of  the  executors, — evidence  which  presents  such 
an  accumulation  of  proof,  that  any  lawyer  whose  mad  desire  for  notoriety  or 
for  fees  had  not  destroyed  all  honorable  or  honest  instincts,  would  at  once  have 
abandoned  a  case  so  clearly  built  upon  falsehood  as  this  one.  We  have  Dr. 
Thorndike,  we  have  Isaac  T.  Smith,  we  have  Arthur  G.  Smith,  and  we  have 
John  Russell.  I  cannot  speak  too  highly  in  commendation  of  the  character  of 
Dr.  Thorndike.  His  appearance  on  the  stand  was  characteristic  of  that  good 
man’s  character  and  career;  plain,  simple,  straightforward,  honest  and  good. 
No  stain  is  upon  his  character,  there  is  nothing  against  him,  his  testimony  comes 
with  that  clear  and  distinct  utterance  which  finds  a  parallel  in  the  clearness  of 
its  truth.  The  husband  of  Sarah  Smith,  whose  character  was  assailed  by  the 
Burtons  in  Judge  Hoar’s  office,  when  the  assailants  and  their  attack  received 
from  that  good  man  the  indignant  repulse  which  so  outrageous  an  attempt  or  an 
insinuation  deserved.  Dr.  Thorndike,  who  has  stood  through  all  this  storm  that 
has  been  raging  about  him,  calmly  and  quietly  waited  until  the  call  of  duty 
should  summon  him,  and  then  he  came  and  told  what  he  had  to  say.  I  need 
add  nothing  of  praise  to  him. 

Mr.  Isaac  T.  Smith :  I  think  your  Honor  will  appreciate  my  sentiment 
when  I  say  that  I  speak  now  not  only  as  counsel  for  an  esteemed  client,  but  as  a 
man  who  sees  another  man  unjustly  attacked,  and  who  through  long  weeks  has 
seen  every  means  tried  to  injure  that  man — means  so  dastardly  that  only  men 
who  can  abandon  that  “fair  play”  which  even  prize-fighters  and  bullies  respect 
would  have  used  them, — who  has  seen  that  man’s  life  scanned  by  eager  eyes  to 
find  a  single  blot,  whether  pertinent  to  this  case  or  not,  who  has  seen  that 
man’s  character  tried  by  a  furnace  heated  seven  times  hot  by  a  fire  lit  by  avarice 
and  malice,  and  perjury  and  madness,  and  who  has  seen  him  come  out  of  all 
“  without  the  smell  of  fire  upon  his  garments.”  Surely,  your  Honor,  I  re¬ 
spectfully  submit,  it  is  due  to  you,  it  is  due  to  myself,  that  the  facts  which  these 
men  have  proved  should  be  cited  by  me.  These  petitioners  have  poured  their 
nitric  acid  of  obloquy,  hoping  that  base  metal  would  melt,  but  Mr.  Smith  has 
come  out  refined  gold.  When  he  came  on  the  stand  his  very  appearance 
x  i 


shattered  some  foolish  stories  which  had  been  circulated  through  the  press 
about  him.  These  stories  were  refuted,  and  they  at  least,  if  not  their  authors, 
slunk  into  their  kennels  and  are  heard  of  no  more.  I  recall  a  description  of 
him  which  I  read  in  a  morning  paper  after  he  appeared  on  the  stand,  the  paper 
referring  to  the  fact  that  he  had  been  described  by  the  petitioners’  witnesses  as 
an  imperious  man,  overbearing  and  proud,  and  distant  and  arrogant.  The 
writer  in  the  newspaper  said  that  he  must  have  broken  under  time  and  events, 
that  his  strong  and  imperious  nature  had  yielded,  for  he  seemed  a  most  amiable 
and  agreeable  gentleman,  giving  no  signs  of  that  cold  and  arrogant  and  hard 
nature  which  these  petitioners  attributed  to  him.  The  power  of  illustration 
which  the  petitioners’  counsel  has  exhibited  in  his  rhetoric  he  has  sought  to 
illuminate  by  the  sketch  which  we  see  on  the  wall  of  the  old  man  himself.  That 
had  disappeared,  and  I  with  pleasure  look  upon  it  this  morning.  It  was  put 
in  here,  and  if  your  Honor  noticed  the  resemblance  between  that  man  who  is 
described  by  the  petitioners’  counsel  as  goodness  itself  and  mercy  and  generosity, 
look  at  Isaac  T.  Smith’s  face,  recall  Isaac  T.  Smith’s  face,  and  see  if  you  don’t 
meet  the  same  thing — that  is  all. 

Why,  what  have  the  petitioners  shown  about  Isaac  T.  Smith?  They  have 
shown  that  he  was  a  good  man  and  attended  to  his  own  business.  He  has  not  only 
been  trusted  by  his  fellow  citizens,  not  only  honored  by  his  State,  not  only  a 
man  whose  life  his  neighbors  may  respect,  whose  children  may  love  and  rever¬ 
ence,  but  a  man  whom  a  king  selected  as  the  agent  of  his  government  in  this 
country.  He  has  fulfilled  the  prophecy  of  the  Bible  :  “  a  man  who  is  diligent 
in  his  business  shall  stand  before  kings.” 

Mr.  Chandler :  Did  he  go  to  Siam?  Mr.  Loring :  Why  didn’t  you  ask 
him  that  question  when  he  was  on  the  stand?  Mr.  Chandler:  I  prefer  to 
put  it  to  you  now.  Mr.  Loruig :  He  was  his  representative  in  this  country. 
He  is  a  man  who  by  the  unshaken  testimony  in  this  case  could  give  up  a  great 
share  of  property,  to  which  he  was  entitled  not  only  by  his  father’s  love  but  by 
his  father’s  gratitude,  and  which  his  father  had  given  him  in  the  will  of  August, 
1864.  He  was  willing  to  give  up  what  his  father,  out  of  gratitude  to  him, 
had  given  him  in  preference  to  the  other  children,  and  on  the  5th  of  October 
he  gave  it  up  for  the  sake  of  protecting  that  father’s  name  even  from  a  futile 
attack  in  the  courts  of  law.  Isaac  T.  Smith,  on  the  5th  of  October,  1864, 
drew  the  line  which  struck  $15,000  out  of  his  estate  and  put  it  in  the  pocket  of 
Eliza  W.  If  Isaac  T.  Smit^  had  not  consented  to  agree  to  this  will  which  is 
now  attacked,  he  would  haVebeen^i^ooo  richer  than  he  is  to-day.  He  is  the 
conspirator  who  is  trying  to  defraud  the  members  of  his  family !  He  is  the 
conspirator  who,  according  to  Eliza  W.  Smith,  alias  Gen,  was  perpetrating  a 
foul  crime  for  his  own  good.  There  was  no  crime  committed  and  there  was 
no  good  gotten  by  it.  He  practicing  a  fraud  to  take  $15,000  out  of  his  own 
pocket!  He  is  a  sensible  man,  he  is  a  man  of  clear  head,  he  is  a  man  who 
manages  the  financial  operations  of  the  Metropolitan  Savings  Bank  of  New 
York,  and  he  is  not  the  foolish  man  to  commit  a  crime  to  gratify  somebody 
else,  and  at  his  own  pecuniary  loss.  I  will  not  enlarge  upon  that.  I  could, 


79 


but  I  will  not.  The  facts  again  argue  themselves.  He  generously  gave  it  up 
into  the  pocket  of  that  very  sister,  whose  mind,  apparently  unhinged  by  ambi¬ 
tion  and  love  of  money,  charges  that  sacrifice  as  a  crime.  I  think  she  cannot 
be  abetted  therein  by  this  tribunal. 

Who  was  Isaac  T.  Smith?  He  did  not  go  to  college,  but  was  educated  at 
the  military  academy,  Middletown,  Connecticut.  In  1834,  about  the  age  of 
twenty,  we  find  him  going  out  as  supercargo  and  confidential  agent  of  our  old 
East  India  merchants,  who  were  very  careful  to  whom  they  entrusted  their 
millions  to  invest  on  the  other  side  of  the  globe.  Next  we  find  him  acting  as 
treasurer  of  a  company  of  which  the  Hon.  Nathan  Hale  of  this  city  was  presi¬ 
dent,  then  for  several  years  a  successful  merchant  in  New  York,  and  agent  of 
the  Siamese  Government,  and  then  for  over  twenty-five  years  holding  very  re¬ 
sponsible  positions  in  a  large  moneyed  institution  in  that  city,  and  for  the  past 
fifteen  years  president  of  the  Metropolitan  Savings  Bank,  and  director  and 
manager  in  other  financial  corporations.  He  was  also  for  several  years  a  Com¬ 
missioner  of  Emigration,  a  position  of  honor  and  trust  conferred  by  the 
Governor  only  upon  citizens  of  high  character,  having  millions  of  money  at 
their  disposal  and  application.  Then  at  the  second  election  of  Lincoln,  when 
only  men  of  unquestioned  patriotism  and  intelligence  were  called  to  the  front, 
he  had  the  honor  of  being  chosen  by  his  fellow-citizens  a  Presidential  elector. 
We  find  his  name  also  connected  as  manager  and  director  of  several  of  the 
noble  charitable  institutions  which  adorn  that  city.  Thus,  during  a  period  of 
forty-five  years,  we  find  him  everywhere  sought  out  and  confided  in  and 
honored.  And  he  is  the  man  who  is  attacked  ! 

May  it  please  your  Honor  ;  the  mutterings  of  this  storm  were  heard  a  year 
or  more  before  it  broke.  It  could  have  been  quieted  for  a  time  by  the  outlay 
of  a  little  money,  doubtless,  onty  to  have  broken  out  again  at  another  time,  for 
the  storms  that  these  men  have  been  raising  have  been  quieted  by  money.  I 
remember  some  testimony  of  Mr.  Hazen  J.  Burton,  Jr.,  which  I  will  merely 
refer  to.  He  says  that  in  the  settlement  of  the  controversy  over  the  will  of  his 
grandmother  he  directed  his  counsel  to  settle  it  but  not  to  destroy  his  chance  of 
opening  it  again  if  he  wanted  to.  That  is  a  magnanimous  way  of  settling ! 
That  is  honorable  advice  to  give  to  a  counsel,  to  advise  him  to  make  a  show  of 
settlement,  but  in  reality  to  have  the  door  open  for  farther  litigation  !  So  these 
gentlemen,  these  executors,  became  safis^^lromj^a^t^e^perience  that  it  was 
idle  to  attempt  anything  excepting  the  of  these  people.  There 

was  no  escape  but  their  annihilation,  and  if  they  detected  anything  wrong  to 
throttle  them  in  their  tracks  by  process  of  law.  Christianity,  education  and 
civilization  prohibit  us  from  taking  by  the  throat  the  man  who  slanders  us,  we 
turn  to  the  process  of  law  for  our  remedy  and  our  hands  are  tied  from  inflicting 
that  condign  punishment  which  such  men  deserve.  I  think  the  whipping  post 
has  been  restored  in  Delaware,  or  some  place,  and  my  impression  is  that  its 
restoration  has  proved  of  great  benefit  in  the  effect  which  it  has  to  stay  certain 
vices.  I  conceive  that  there  is  one  vice  of  which  there  is  no  more  fitting  pun¬ 
ishment  than  the  whipping  post  and  the  stocks.  And  these  gentlemen,  having 


So 


nothing  in  their  own  characters  or  conduct  to  fear,  Isaac  T.  Smith  and  Dr. 
Thorndike,  determined  to  stand  the  shock  and  let  the  conspirators  do  their  worst, 
and  in  taking  this  stand,  may  it  please  the  court,  I  submit  that  these  gentlemen 
not  only  adopted  a  wise  part  in  itself,  but  performed  a  public  service,  a  duty  as 
citizens,  in  letting  knaves  understand  that  schemes  of  this  kind  will  not  bring 
them  money.  And  now  consider  Arthur  G.  Smith’s  testimony.  He  is  our 
next  witness.  He  comes  on  here  although  Hazen  J.  Burton,  Jr.,  tried  to  make 
a  bargain  with  him  by  which  he  should  be  induced  to  stay  in  New  York  or  else 
come  on  here  and  swear  for  him.  I  have  called  Hazen  J.  Burton,  Jr.,  a  per¬ 
jurer  and  a  suborner  of  perjury.  I  repeat  the  charge  in  connection  with  Arthur 
G.  Smith  for  I  am  reminded  of  it,  and  I  say  that  the  attempt  on  his  part  to 
induce  that  man  not  to  come  on  to  Boston  is  simply  of  a  character  with  the 
whole  course  of  this  case.  Arthur  G.  Smith  told  him  “  I  will  not  be  induced 
by  your  guarantees  or  assurances,  I  am  coming  on  to  tell  the  truth,  and,”  he  adds, 
“  to  sustain  the  trust  that  was  made.”  What  does  Mr.  Burton  say  after  Arthur 
G.  Smith  has  told  his  story?  Why  he  is  called  by  Mr.  Chandler  to  rebut  him. 
Mr.  Chandler  made  two  or  three  attempts  to  rebut.  He  called  on  George  S. 
Burton  to  rebut  Judge  Hoar’s  testimony.  How  did  he  rebut  it?  He  said  if 
Judge  Hoar  had  not  testified  as  he  did  he  would  have  sworn  just  as  his  brother 
did.  I  remarked  it  was  fortunate  for  him  he  heard  Judge  Hoar  before  he  did 
testify  like  his  brother.  Another  attempt  is  made  upon  Arthur  G.  Smith.  He 
comes  on  here  from  New  York  and  gives  important  testimony  for  the  respon¬ 
dents,  and  the  petitioners’  counsel  seeks  to  damage  his  testimony  by  showing 
that  the  witness  once  struck  his  brother.  The  petitioners’  counsel  asked  him 
with  an  air  of  satisfaction  and  delight,  “didn’t  you  jump  over  a  table  and 
strike  your  brother?”  “  Yes,  and  I  would  do  it  again  if  he  struck  my  sister.” 
That  is  the  attack  which  is  made  on  Arthur  G.  Smith  !  He  was  asked  if  he 
wasn’t  tried  in  New  York.  He  is  not  much  acquainted  with  the  process  of 
law,  and  he  said  he  was  tried.  They  asked  him  if  he  wasn’t  tried  for  carrying 
off  those  papers,  and  he  said  “yes.”  When  I  showed  him  the  records  of  the 
courts  of  New  York,  he  was  reminded  of  the  fact  that  that  was  the  record  of 
the  trial.  And  what  was  it?  Why,  your  Honor,  he  was  not  tried  in  the  courts 
of  New  York.  Mrs.  Smith,  alias  Gen,  sued  him  in  the  courts  of  New  York 
and  judgment  was  rendered  there  against  Mrs.  Smith  and  in  favor  of  Arthur  G. 
That  is  the  only  trial  he  had.  And  Mr.  Chandler  called  up  to  my  mind  again 
by  that  little  question  the  existence  of  that  judgment,  which  is  proof  enough, 
with  Mrs.  Smith,  alias  Gen’s,  testimony  here,  to  cause  her  indictment  for  per¬ 
jury,  a  conviction  of  perjury,  followed  by  punishment.  The  testimony  from 
Arthur  G.  Smith  then  bore  upon  Mrs.  Smith’s  talk  with  him  in  1S64  when  this 
will  was  offered  for  probate.  Mrs.  Smith  has  sworn  here  in  1S79  and  1S7S, 
that  when  that  will  was  made  she  was  shocked,  and  she  afterwards  opposed  it 
and  wanted  it  to  be  broken  down,  thought  it  ought  not  to  be  set  up.  Well, 
Arthur  G.  Smith,  (I  will  not  read  his  testimony,  but  it  was  distinct  and  direct) 
swore  that  Mrs.  Smith  urged  him  to  abandon  his  appeal  and  made  an  agree¬ 
ment  by  which  his  counsel  fees  were  paid,  and  he  was  paid  a  hundred  dollars, 


8i 


and  the' property  was  put  in  trust  to  Mr.  Bangs  ;  and  she  told  him  that  that  will 
could  not  be  broken,  that  her  father  knew  just  as  well  what  he  was  about  as  he 
(Arthur)  did  then  when  he  was  talking  with  her  and  that  it  was  all  absurd  to 
attempt  to  attack  it.  That  is  what  this  woman  said  in  1864.  And  now  she 
comes  here  armed  with  all  the  weapons  which  a  corrupt  nature  and  a  designing 
imagination  can  invent,  and  stands  up  here  and  swears  that  that  was  not  so. 
And  she  swears,  I  think,  for  her  own  amusement,  she  certainly  swears  for  her 
own  destruction.  Arthur  tells  what  she  said  and  did  in  1864  and  1865  and 
nobody  will  contradict  it  excepting  Eliza  W.  Smith,  she  is  a  contradiction,  as  I 
have  said,  in  herself  per  se.  She  is  nothing  if  she  is  not  a  contradiction,  and 
so  she  cannot  contradict  anybody. 

Our  evidence,  may  it  please  the  court,  the  story  of  Mr.  Isaac  T.  Smith,  in 
regard  to  that  scene  at  the  signing  of  the  will,  I  have  no  doubt  impressed  itself 
upon  your  Honor’s  mind  with  vividness  and  distinctness,  and  that  it  freed  your 
mind  from  any  question  as  to  whether  that  will  was  properly  signed.  Isaac  T. 
Smith  came  from  New  York,  and  went  to  his  father’s  house,  he  learned  that 
his  father  had  executed  a  codicil,  and  for  some  reason  Mrs.  Thorndike  declined 
to  show  it  to  him  ;  he  went  to  Eliza  out  in  Medford  and  she  came  in  to  see  if 
she  could  not  see  the  codicil.  Eliza  saw,  and  urged  the  making  of  a  new  will. 
The  will  was  drawn  by  Mr.  Rollins  on  the  5th  of  October.  Mr.  Rollins  swears 
so.  Isaac  T.  Smith  says  that  on  the  5th  of  October  he  went  to  the  house  with 
the  will  which  he  had  drawn,  and  took  it  to  his  father  and  read  it  to  him  ;  that 
he  then  showed  it  to  his  mother  and  sisters,  and  it  met  with  their  approbation,  and 
then  he  took  that  will  into  the  room  where  his  father  was  ;  then  the  family  came 
into  that  room,  witnesses  were  sent  for,  Mrs.  Giles,  Margaret  Patterson  and 
Andrix  A.  Foster;  and  the  old  gentleman  took  his  pen  with  which  to  sign  that 
will,  and  being  feeble  at  that  time  he  found  difficulty  in  controlling  the  pen  and 
it  made  a  spattering,  “  then,”  says  Isaac,  “  my  mother  said  Why  don’t  you  assist 
your  father,  Isaac,”  and  thereupon  after  he  had  written  part  of  his  name  Isaac 
puts  his  hand  upon  his  father’s  feeble  hand  and  guides  it  to  its  conclusion.  Tha^ 
is  Isaac  T.  Smith’s  story  about  that,  and  that  man,  the  petitioners’  counsel, 
dares  to  stand  before  this  court  and  say  that  that  spattered  signature  needs  no 
argument  to  pronounce  it  a  forgery  !  Why,  may  it  please  the  court,  a  forger 
usually  attempts  to  imitate.  The  forgery  that  has  been  sketched  before  this 
court  by  this  counsel’s  predecessor,  if  not  by  him,  was  that  wicked,  heinous 
forgery  of  taking  a  dead  man’s  hand  and  writing  his  name  to  a  will.  Humanity 
is  shocked  at  the  suggestion  of  such  an  infamy.  The  human  mind  fails  to  com¬ 
prehend  it  in  all  its  enormity, — that  the  son  of  a  good  old  father  who  had  been 
kind  to  him  and  to  whom  he  had  been  kind,  that  the  son  of  that  good  old  man 
who  had  always  been  true  to  his  son,  and  to  whom  this  son  had  always  been 
devoted,  that  he  who  had  stood  by  his  father  when  his  fortunes  were  being 
shattered  by  the  fall  in  values,  and  poverty  was  hanging  over  his  head,  when 
his  property  was  in  the  hands  of  a  sheriff, — as  my  brother  Drury  offered  to  and 
did  prove, — and  was  about  to  be  sold,  that  this  man  who  had  stood  as  I  say  at 
his  father’s  right  hand  as  his  defender,  his  protector  and  his  supporter,  that  he 


82 


who  was  his  father’s  only  living  son,  performing  the  filial  duties  of  a  son,  that 
this  son  took  his  father’s  hand  as  he  lay  dying  and  unconscious,  as  bad  as  if 
dead,  took  that  father’s  hand  and  just  as  his  father  was  about  leaving  this  world 
of  woe  to  an  eternity  beyond,  and  committed  this  crime  at  the  death  bed  of  his 
father  !  That  is  the  first  crime  which  Isaac  T.  Smith  ever  committed  in  all  his 
life  ;  that  is  the  first  sin  which  he  is  known  to  have  been  guilty  of.  Well,  a 
man  never  becomes  wicked  in  a  day,  and  it  would  take  a  long  lifetime  of  atroc¬ 
ities  to  embolden  the  man  and  make  him  wicked  enough  to  do  this  deed.  To 
stand  up  before  heaven,  and  with  all  the  fear  of  a  righteous  judgment  hereafter, 
and  to  do  the  deed  which  he  is  said  to  have  done  then,  and  now  to  have  sworn 
that  he  did  not, — why  the  duplicity  of  his  offence  finds  no  parallel  in  the  annals 
of  criminal  record.  There  is  a  wickedness  and  a  corruption,  there  is  a  hardness 
of  heart  and  a  degradation  of  soul  attending  the  commission  of  such  an  offence 
that  finds  a  parallel  only  in  the  like  traits  of  character  that  are  exhibited  by  the 
family  of  Burtons  in  this  court. 

I  submit,  may  it  please  the  Court,  that  before  Isaac  T.  Smith  shall  be  found 
guilty  of  the  crime  this  counsel  dares  charge  him  with,  the  sun  will  standstill  in 
the  heavens,  and  the  thunders  will  cease  to  roar.  No,  may  it  please  the 
Court.  No  man  can  command  that  power  of  oratory  and  that  elegance  of 
diction  and  rhetoric,  by  which  any  testimony  which  has  been  brought  into  this 
case  can  be  made  to  cast  a  shadow  or  a  show  of  suspicion  of  guilt  upon  Isaac 
T.  Smith.  I  know  that  no  lawyer  can  use  the  English  language  with  such  con¬ 
vincing  force  as  to  persuade  your  Honor  that  my  client,  Mr.  Isaac  T.  Smith, 
whose  life  up  to  the  5th  of  October,  1864,  bore  the  record  of  an  honest  and 
righteous  man,  became  on  that  day  the  vilest  of  sinners,  and  became  on  this 
last  month  the  blackest  of  perjurers. 

Had  I  not  occupied  so  much  of  the  time  of  the  Court,  it  would  gratify  me 
personally  to  dwell  a  little  more  upon  this  spectacle  which  we  have  had  before 
us.  We  have  proved,  may  it  please  the  Court,  the  substantial  facts  ;  that  Mr. 
Isaac  T.  Smith  was  not  in  Boston  on  the  10th  of  October,  as  they  swear  he 
was ;  that  the  will,  this  paper,  which  they  say  was  drawn  on  that  day,  and 
signed  on  that  day,  was  not  drawn  and  signed  on  that  day  by  him  because  he 
was  in  New  York.  I  pass  the  attempts,  paltry  and  petty,  and  aimless  and  in¬ 
effectual,  to  attack  that  deposition  ;  the  deposition  is  here,  and  John  Russell’s 
testimony  is  here,  and  he  confirms  Isaac  T.  Smith.  We  prove  by  Isaac  T.  Smith 
what  part  he  took  in  the  signature  to  his  father’s  will.  I  simply  submit,  as  a 
matter  of  law,  that  the  facts  which  he  states  constitute  a  lawful  signing  by  the 
testator.  I  should  say,  furthermore,  that  had  Isaac  T.  Smith  written  his 
father’s  name  himself,  without  having  his  father’s  hand  in  his,  had  taken  the 
pen  and  written  his  father’s  name,  and  then  his  father  had  acknowledged  that 
to  be  his  signature,  and  asked  Mrs.  Giles  and  Margaret  Patterson  and  Andrix 
A.  Foster  to  come  and  witness  it,  and  they  had  witnessed  it,  and  he  had  told 
them  that  it  was  his  will,  it  would  have  been  his  signature  and  his  will. 

Mr.  Chandler :  No  doubt  of  that. 

Mr.  Loring:  I  get  no  aid,  may  it  please  the  Court,  from  the  assent  given 


83 


to  my  pfoposition  by  the  counsel  for  the  petitioners.  That  would  have  been 
his  will.  This  was  his  will.  If  this  will  had  been  rejected  in  the  Probate 
Court,  may  it  please  your  Honor,  Isaac  T.  Smith  would  have  been  worth 
$15,000  more  than  he  is.  He  had  no  motive  to  do  such  a  thing.  He  hadn’t 
the  power  to  do  such  a  thing,  because  if  he  did  not  have  an  imperious  nature, 
he  had  a  good  conscience,  a  sense  of  right  and  goodness,  he  had  the  fear  of 
God  before  his  eyes,  and  he  always  has  had  ;  and  that  is  what  has  made  a  good 
man  of  him.  And  he  didn’t  forget  the  presence  of  his  God  as  he  stood  by  the 
bedside  of  his  dying  father.  He  didn’t  then  for  the  first  time  break  from  the 
control  of  that  holy  influence  which  has  evidently  guided  him  through  a  long 
and  active  life,  making  him  to  stand  before  the  people  as  a  counsellor  and 
friend,  making  him  prominent  among  the  good  men  of  New  York  city,  a  dis¬ 
penser  of  its  charities,  an  honor  to  his  name,  and  a  credit  to  the  place  of  his 
birth  and  of  his  adoption. 

And  now,  may  it  please  the  court,  I  have  done.  The  feeling  of  jiespect 
which  naturally  comes  over  me  as  I  apprehend  the  inadequacy  of  these  re¬ 
marks  is  tempered  by  the  knowledge  that  the  high  character  of  my  client  and 
the  justice  of  my  cause  more  than  overbalance  the  weakness  of  their  advocate, 
and  that  the  decision  will  rest  with  you,  sir,  who  both  by  training  and  inclina¬ 
tion  judge  not  from  words  but  facts.  It  is  one  of  the  boasts  of  our  civilization 
that  it  leads  men  to  give  up  that  natural  impulse  which  prompts  us  to  redress 
wrong  by  violence,  and  restrains  that  feeling  which  tempts  us  to  grasp  a  liar 
and  slanderer  by  the  throat,  and  controls  that  instinct  which  would  lead  us, 
when  insults  so  wanton  and  slanders  so  foul  are  hurled  against  the  character  of 


the  living  and  the  memory  of  the  dead  as  the  petitioners  and  some  of  their  wit¬ 
nesses  have  dared  to  utter,  to  “  put  in  every  honest  hand  a  whip  and  lash  the 
rascals  naked  through  the  world.”  Civilization  and  religion  teach  us  to  lay 
aside  our  weapons,  to  control  our  just  resentment,  and  to  leave  retribution  to 
those  tribunals  which  we  have  erected  as  the  emblems  of  that  righteous  God 
who  administers  impartial  justice.  On  that  justice  we  rely — firm,  secure, 
majestic.  And  we  ask  your  Honor,  as  its  representative,  to  render  a  decision 
so  clear  and  decisive  that  it  shall  form  both  a  punishment  and  a  compensation 
— a  fitting  punishment  to  these  base  assailants,  a  high  vindication  of  these  inno¬ 
cent  defendants. 

What  retribution  is  not  due  to  those  who,  through  unhallowed  lust  of  gold, 
have  violated  every  sentiment  of  family  pride,  every  spark  of  honor,  every  in¬ 
stinct  of  decency?  What  deep  infamy  should  fall  on  her  whose  lying  lips  have 
not  only  accused  a  brother  and  sister,  but  have  overleaped  that  sacred  bound 
which  shields  a  parent’s  memory?  “Taint  not  thy  mind,  nor  let  thy  heart 
contrive  against  thy  mother  aught.”  That  mother  has  not  been  spared  by  her, 
was  not  spared  during  her  life,  and  since  her  death  her  memory  has  not  been 
held  sacred.  Well  for  that  daughter  had  it  been,  had  she  remembered  this. 
The  sentiment  of  pity  leads  me  to  hope  that  her  infamy  is  palliated  by  want  of 
reason.  Insanity  has  been  pleaded  as  a  defence  when  one  is  tried  for  slaying 


84 

the  body  ;  let  it  also  mitigate,  though  it  cannot  cover,  her  crime  in  attempting 
to  slay  innocent  character. 

And  that  young  man  upon  whose  shoulders  rests  so  much  of  the  guilt  of  this 
black  proceeding ;  who,  by  every  means  which  baseness  could  prompt  and 
brazen  hardihood  could  execute,  has  endeavored,  even  when  he  saw  his  worth¬ 
less  case  was  lost,  who  when,  as  he  told  Arthur  G.  Smith,  he  threatened  an  ap¬ 
peal  from  what  he  felt  or  feared  must  be  your  Honor’s  verdict,  has  endeavored 
to  stain  the  reputation  of  men  who  towered  above  him  like  “Hyperion  to  a 
satyr”  ;  who,  in  this  court  and  out  of  it,  has  lied  and  slandered  and  backbitten, 
trying,  like  the  snake  he  is,  to  sting  the  heel  since  he  cannot  reach  the  heart : — 
Let  your  Honor’s  words,  I  pray,  fall  upon  him  with  such  a  weight  of  warning 
that  they  may  go  through  even  the  callous  covering  of  his  heart  and  teach  him 
that,  in  this  court  at  least,  “Corruption  wins  not  more  than  honesty.” 

So  much  for  the  guilty, — now  one  word  for  the  innocent.  I  think  I  may  be 
permitted  to  say  that  it  is  the  duty  and  privilege  of  your  Honor, — for  it  is  a 
privilege  as  well  as  a  duty  to  vindicate  innocent  character  unjustly  assailed — to 
give  a  decision  which  they  can  forever  quote  as  a  conclusive  answer  to  these 
calumnies.  In  this  proceeding  and  in  this  court  my  clients  could  not  ask 
money  damages,  and  it  is  well  that  it  should  be  so.  There  are  some  injuries 
that  money  can  compensate.  If  a  thief  steals  my  purse,  if  a  ruffian  assaults 
my  person,  I  can  go  into  a  court  of  law  and  ask  for  money  to  repair  the  dam¬ 
age  ;  but  character  is  a  plant  of  slow  growth — “There  doth  a  good  man  garner 
up  his  hopes,”  there  either  he  must  live  or  bear  no  life.  And  they  who 
wickedly  assail  reputation  commit  a  deeper  and  a  blacker  crime  than  they  who 
wound  the  body  or  pilfer  the  purse. 

We  ask  you  therefore,  may  it  please  your  Honor,  not  only  to  dismiss  this 
petition,  but  to  vouchsafe  your  reasons  therefor,  that  where  these  people  have 
sowed  their  lies  we  may  scatter  the  good  seed  of  your  Honor’s  decision.  Libel 
suits  against  these  people  would  be  barren  victories.  Indictments  would 
punish  them  without  benefiting  us.  No,  sir.  I  ask  in  behalf  of  Isaac  T. 
Smith,  I  ask  in  behalf  of  Dr.  Thorndike,  what,  I  think.  I  have  a  right  to  ask, 
and  what,  I  think,  no  honest  man  can  more  highly  value  —  the  clear  decision 
of  an  upright  judge. 

And  with  your  Honor  I  leave  my  client’s  cause,  confident  of  the  result  of 
your  deliberations  ;  and  I  beg  to  be  thankful  for  the  time  and  attention  which 
have  been  given  me,  and  if  I  have,  by  what  I  may  have  said,  aided  the  court  in 
arriving  at  the  conclusion  at  which  I  arrive,  the  memory  of  it  will  be  pleasant 


Closing  Argument  of  Win.  EL  Drury,  Esq., 


Counsel  for  Dr.  Wm.  II,  Thorndike , 


JANUARY  22,  1879. 


May  it  please  your  Honor  : 

During  all  the  time  of  the  Court  which  this  case  has  occupied  since  it  was 
begun,  in  May  last ;  in  all  the  appointments  for  hearing  which  have  been  made  ; 
through  all  the  postponements  and  delays  ;  in  all  the  preliminary  hearings  up- 
pon  the  various  motions  and  questions  which  have  come  before  the  Court ; 
through  this  long  trial  upon  the  merits,  listening  to  the  statements  of  counsel, 
the  examination  of  witnesses,  and  now  in  the  final  argument;  your  Honor  has 
exhibited  a  patience  which  will  ever  be  remembered  by  11s  with  profound  grati¬ 
tude  and  respect.  And  I  now  ask  your  further  indulgence,  which  I  am  all  the 
more  diffident  to  ask,  because  I  feel  that  your  Honor  is  willing  to  grant  it, 
while  I  perform  this  last  duty  to  my  clients,  and  present  my  final  argument  for 
your  consideration. 

The  real  defendants  in  this  case,  may  it  please  your  Honor,  are  Hazen  J. 
Burton,  Jr.,  and  those  who  have  counselled,  aided  and  abetted  him.  They  are 
on  trial  here.  This  case  was  first  presented  in  the  shape  of  an  attack,  un¬ 
exampled  for  bitterness  and  malignity,  aimed  principally  against  a  woman  who 
is  now  dead.  A  petition  was  filed  in  this  court  May  6,  1878,  on  the  back  of 
which  appeared  the  name  of  Benjamin  F.  Butler,  the  substance  of  which 
petition  was  as  follows  : — 

First ,  that  Ebenezer  Smith,  possessed  of  a  fortune  of  $300,000  and  upwards, 
died  intestate  October  12,  1864; 

Second ,  that  prior  to  the  death  of  the  said  Ebenezer  Smith,  Sarah  W. 
Thorndike,  (put  at  the  head),  Isaac  T.  Smith  and  Eliza  W.  Gen,  (alias 
Smith),  children  of  Ebenezer  Smith,  entered  into  a  wicked  conspiracy  to 
defraud  and  cheat  Hazen  J.  Burton,  Jr.,  and  George  S.  Burton,  at  that  time 
minors,  sons  of  a  deceased  daughter  of  the  said  Ebenezer  Smith,  from  obtain¬ 
ing  their  shares  of  his  estate  to  which  they  would  have  been  entitled  as  his 
lreirs-at-law  in  case  of  his  intestacy  ; 

Third ,  that  in  pursuance  of  said  conspiracy,  said  conspirators  caused  and 
procured  the  name  of  Ebenezer  Smith  to  be  forged  upon  a  false  and  fraudulent 
instrument  dated  October  5,  1864,  purporting  to  be  the  last  will  and  testament 
of  Ebenezer  Smith  ; 


12 


86 


Fourth ,  that  said  conspirators  fraudulently  procured  said  forged  instrument 
to  be  attested  and  signed  by  three  persons  as  witnesses ; 

Fifth ,  (here  is  where  Dr.  Thorndike  comes  in),  that  said  conspiritors,  to¬ 
gether  with  Dr.  William  H.  Thorndike,  one  of  the  executors  named  in  the 
forged  instrument  aforesaid,  and  well  knowing  these  facts,  and  aiding  and  abet¬ 
ting  in  them,  in  further  pursuance  of  said  conspiracy,  fraudulently  caused  and 
procured  said  forged  instrument  to  be  proved  and  admitted  to  probate  ; 

Sixth,  that  upon  an  appeal  from  the  probate  of  said  will,  taken  to  the  Su¬ 
preme  Judicial  Court  by  the  guardian  ad  litem  of  the  petitioners,  a  compromise 
was  made,  in  pursuance  of  which  a  final  decree  was  entered  in  said  case  sus¬ 
taining  the  probate  of  said  will,  and  their  said  guardian  accepted  and  received 
for  them  $5,000  in  satisfaction  of  their  claim  against  the  estate  of  Ebenezer 
Smith,  said  guardian  being  deceived  and  misled  thereunto  by  the  fraudulent 
doings  of  said  conspiritors,  and  being  wholly  ignorant  of  the  facts  in  the  prem¬ 
ises  ; 

And  Seventh ,  that  said  Hazen  J.  Burton,  Jr.,  and  George  S.  Burton 
were,  by  the  fraudulent  acts  of  said  conspiritors,  done  secretly  and  concealed 
from  them  as  aforesid,  defrauded  out  of  their  lawful  share  of  Ebenezer  Smith’s 
estate,  such  share  amounting  to  about  $60,000. 

This  was  the  substance  of  the  allegations  in  the  petition  as  far  as  it  related  to 
the  will  of  Ebenezer  Smith  ;  and  I  call  your  attention  to  the  enormity  of  the 
offences  which  are  therein  charged  ; — offences  some  of  which  would  have  been 
felonies  by  the  statute  law  of  this  Commonwealth,  and  these  persons,  who  are 
charged  with  having  committed  them,  would  have  been  liable  to  sentence  for 
ten  years  in  the  State  Prison,  and  the  offences  are  not  outlawed  to-day  in  regard 
to  Isaac  T.  Smith,  who  is  subject  to  indictment  for  the  crimes  with  which  he 
is  charged,  if  he  is  guilty  of  them,  and  if  any  Grand  Juiy  could  be  found  to 
bring  in  an  indictment. 

Mr.  Chandler :  The  statute  of  limitations  saves  them.  Mr.  Drury ;  It 
does  not  save  him,  not  Isaac  T.  Smith.  He  is  subject  to  indictment.  And  why 
don’t  these  men  who  are  clamoring  here  go  to  that  Grand  Jury,  as  Judge  Hoar 
told  them  to  go  with  their  former  blackmailing  case?  Why  don’t  they  go  to 
that  Grand  Jury  and  have  Isaac  T.  Smith  indicted,  if  they  mean  what  they  say? 
Mr.  Chandler :  Because  the  statute  of  limitations  prohibits  it.  Mr.  Drury  : 
Because  they  lie,  because  they  do  not  mean  what  they  say,  and  the  statute  of 
limitations  does  not  prohibit  an  indictment.  I  say,  your  honor,  that  the 
alleged  offences,  some  of  them,  would  have  been  felonies,  and  the  others 
would  have  been  crimes  in  themselves  morally  as  bad  as  felonies  ; — a  conspiracy 
to  defraud,  carried  out  by  forgery,  pursued  by  fraudulently  procuring  a  forged 
instrument  to  be  witnessed,  further  pursued  by  imposing  upon  a  court  by  false 
testimony, — publishing  a  false  and  forged  instrument  whereby  a  forged  instru¬ 
ment  was  falselv  proved  and  procured  to  be  admitted  to  probate, — and  crowned 
with  success  by  obtaining  the  great  stake  of  $60,000,  out  of  which  two  helpless 
minors  were  unjustly  and  wickedly  defrauded. 

To  these  charges  relating  to  the  will  of  Ebenezer  Smith,  was  attached 


87 


another  bitter  and  malignant  attack  upon  a  woman  alone,  relating  to  the  will 
of  Eliza  Smith,  the  widow  of  Ebenezer  Smith,  charging  Sarah  W.  Thorndike, 
by  means  of  undue  influence  upon  her  mother,  and  by  other  wicked  and 
atrocious  means,  with  cheating  the  petitioners  out  of  about  $40,000. 

The  substance  of  this  petition  was  published  at  the  time  by  the  procurement 
of  the  petitioners,  as  I  have  good  reason  to  believe.  At  the  return  day  of  this 
petition  a  hearing  was  appointed  to  take  place  on  the  18th  of  June,  and  I  ap¬ 
peared  here  with  witnesses  intending  to  go  to  trial ;  but  the  petitioners  were 
not  ready.  Thereupon,  upon  my  application  to  your  Honor,  the  petitioners 
were  ordered  to  file  affidavits  of  the  evidence  which  the  petitioners  alleged  in 
their  petition  that  they  possessed,  upon  which  they  relied  to  sustain  the  charges 
which  they  had  made.  Affidavits  were  accordingly  filed  in  court  on  the  29th 
of  June,  having  previously  been  furnished  to  the  newspapers  for  publication, 
together  with  some  other  affidavits  which  were  not  filed ;  and  they  first 
appeared  at  great  length  in  the  Sunday  papers  of  June  30th,  preceded  in  one 
paper  by  the  staidling  words  in  large  type  :  “The  Root  of  all  Evil.”  “  ioc,ooo 
and  some  Boston  reputations  involved.”  “  Signing  a  will  on  the  threshold  of 
eternity.”  “  A  harrowing  story  by  a  defrauded  daughter.” 

Mr.  Chandler:  Is  that  in  evidence?  Mr.  Drury:  Public  history  and 
common  knowledge.  And  thenceforth  this  case  became  a  public  sensation, — a 
matter  of  common  knowledge  and  public  history  now.  On  the  8th  of  July 
I  appeared  before  your  Honor  and  asked  that  a  hearing  might  be  had  the  next 
day  upon  a  motion  which  I  should  make  to  dismiss  so  much  of  the  petition  as 
related  to  the  will  of  Eliza  Smith.  The  case  was  excessively  annoying  and 
distressing  to  my  clients,  because  of  this  publicity,  but  they  had  no  fear  of  the 
result  in  court ;  and  to  show  their  confidence  in  their  case  they  did  not  fear  to 
entrust  it  to  my  hands  against  the  great  and  glorious  Butler  ;  for  they  knew  that 
“  Thrice  is  he  armed  that  hath  his  quarrel  just, 

And  he  but  naked,  though  locked  up  in  steel, 

Whose  conscience  with  injustice  is  corrupted.” 

I  had  a  week  in  which  to  read  the  affidavits  which  the  petitioners  had  been 
on  a  “still  hunt”  preparing  for  a  year  and  a  half,  with  the  most  noted  lawyer 
in  the  country  and  his  numerous  assistants  to  aid  them  and  to  represent  them. 
General  Butler  appeared  here  in  court,  greatly  to  my  astonishment.  I  did  not 
even  attempt  to  rebut  the  affidavits  by  a  single  word  of  evidence.  I  took  occa¬ 
sion,  however,  to  sift  them,  and  with  nothing  but  law  and  argument  on  our 
side  to  meet  that  part  of  the  case,  after  a  hearing  which  occupied  a  whole  day, 
in  which  the  distinguished  counsel  for  the  petitioners  occupied  two-thirds  of 
the  time  and  did  two-thirds  of  the  talking,  it  was  decided  that  they  had  not 
made  out  any  case  as  far  as  the  will  of  Eliza  Smith  was  concerned.  That  part 
of  the  petition  was  dismissed  and  the  petitioners  were  routed,  and  they  found 
that  there  were  blows  for  them  to  receive  as  well  as  blows  to  give. 

The  other  part  of  the  petition  relating  to  the  will  of  Ebenezer  Smith  came 
on  for  trial  September  3d,  and  the  petitioners  were  asked  simply  to  comply  with 
the  law,  and  show  their  good  faith,  by  paying  back  the  $5,000  received  from 
the  estate  of  their  grandfather,  before  proceeding  further,  which  they  failed  to 


88 


do.  General  Butler  stepped  out,  and  the  present  counsel  for  the  petitioners 
stepped  in.  And  his  first  step  was  to  ask  that  the  petition  which  his  clients  had 
filed  be  dismissed  without  prejudice,  frankly  confessing  before  your  Honor 
here  in  court  that  he  could  not  sustain  the  charges  which  were  therein  made. 
I  opposed  the  application  as  vigorously  as  I  could,  because  I  wished  to  hold 
these  petitioners  to  the  monstrous  charges  which  they  had  made,  and  which 
they  confessed  through  their  counsel  that  they  had  been  guilty  of  making,  with¬ 
out  the  ability  to  prove  them.  The  application  to  dismiss  without  prejudice 
was  denied.  Counsel  next  asked  leave  to  amend  the  petition  by  striking  out 
everything  therein  relating  to  the  will  of  Ebenezer  Smith  and  substituting 
therefor  the  amended  petition  upon  which  this  case  is  now  on  trial, — a  com¬ 
paratively  mild  petition  on  which  I  at  first  thought  I  should  advise  my  clients 
not  to  go  to  trial,  because  it  contained  nothing  that  was  not  comprehended  in 
the  reasons  of  appeal  on  which  the  case  went  up  to  the  Supreme  Judicial 
Court  fourteen  years  ago.  But  Isaac  T.  Smith,  especially,  was  very  desirous 
for  an  investigation  of  the  case  as  thorough  as  possible,  and  my  clients  thought, 
on  the  whole,  it  was  better  to  have  the  matter  decided  as  soon  as  possible.  The 
motion  for  the  repayment  of  the  $5,000  was  withdrawn,  the  decree  thereon 
waived,  and  we  consented  to  go  on  as  if  the  motion  had  not  been  made.  The 
case  came  on  for  trial  December  4th,  and  the  counsel  for  the  petitioners  made 
an  opening  argument  reviving  everything  which  he  had  abandoned,  everything 
which  was  contained  in  the  first  petition  and  a  great  deal  more  that  was  not  in 
it, — some  of  the  groundless  talk  of  Benjamin  F.  Butler, — an  argument  fairly 
entitled  to  the  credit  of  containing  more  groundless  charges,  false  insinuations, 
fictitious  statements  and  perversions  of  fact  than  are  often  found  condensed  to¬ 
gether  into  the  same  space. 

I  repeat  now,  your  Honor,  that  Hazen  J.  Burton,  Jr.,  and  George  S.  Burton, 
their  counsellors,  aiders  and  abetters  are  upon  trial  here,  and  are  the  real 
defendants  in  this  case.  Unless  they  have  sustained,  or  given  reasonable  and 
probable  cause  for,  the  monstrous  charges  made  and  published,  they  stand 
guilty  of  prosecuting  a  wickedly  malicious  case  and  prostituting  a  court  of 
justice  to  the  foul  and  base  purpose  of  giving  protection  to  the  utterance  and 
publication  of  the  foulest  kind  of  slander.  Considering  what  a  strong  case  any 
counsel  of  decent  ability  would  have  told  them  they  must  make  out  to  upset  a 
will  fourteen  years  after  it  had  been  admitted  to  probate,  considering  this  whole 
case,  the  way  the  old  case  was  settled  fourteen  years  ago  by  a  family  compro¬ 
mise,  and  the  way  in  which  the  case  has  been  prosecuted,  the  way  in  which 
the  charges  have  been  published,  if  they  have  not  shown  to  the  satisfaction  of 
this  court  beyond  a  reasonable  doubt  that  all  these  defendants  are  the  grossest 
criminals,  guilt)’  of  the  enormous  crimes  charged,  then  these  petitioners  are 
themselves  morally  guilty  of  a  great  crime,  and  deserve  to  be  consigned  to 
infamy  for  the  rest  of  their  lives  and  to  receive  the  contempt  of  all  honest  men. 
If  they  have  imputed  to  persons  of  good  character  and  standing  the  foulest  kind 
of  crimes,  without  adequate  cause,  they  must  expect  that  I  shall,  in  the  course 
of  my  argument,  characterize  them  as  they  deserve. 


89 


We  have  been  patiently  waiting,  your  Honor,  and  I  have  no  doubt  you  have 
been  patiently  waiting,  and  the  public  has  been  patiently  waiting,  to  see  the 
counsel  for  the  petitioners  come  down  out  of  the  clouds  into  which  he  soared  in 
his  opening  argument,  and  sustain  the  charges  which  he  therein  made,  and 
“  give  to  airy  nothing  a  local  habitation  and  a  name.”  But  have  they  justified 
themselves?  Have  they  proved  what  they  have  charged?  No,  they  have  not. 
It  would  be  too  charitable  to  say  that  those  charges  are  the  ravings  of  a  mad¬ 
man,  or  even  the  inventions,  visions  and  dreams  of  a  wicked,  diseased,  dis¬ 
tempered  and  distorted  imagination. 

This  case,  your  Honor,  has  attracted  infinitely  more  public  attention,  and  re¬ 
ceived  far  greater  notoriety,  than  it  ever  deserved.  This  is  not  an  important 
case  intrinsically,  but  is  important  only  as  made  so  by  publicity.  It  is  a  great 
noise  about  nothing.  I  suppose  the  reason  why  at  one  time  some  thought  it 
was  so  important  was  that  the  name  of  a  very  noted  lawyer  was  attached  to  the 
petition.  We  were  to  be  treated  to  something  startling,  highly  interesting  and 
sensational.  A  large  estate,  grown  to  be  worth  perhaps  a  million  dollars,  which 
had  been  settled  a  dozen  years,  was  to  be  unsettled.  The  public  mind  was  pre¬ 
pared  by  newspaper  articles  to  believe  that  one  of  the  foremost  physicians  in 
the  city  in  reputation  for  character  and  ability,  his  wife  and  his  wife’s  brother,  a 
prominent  gentleman  in  New  York  of  high  reputation,  and  holding  various 
offices  of  trust  and  responsibility  and  honor,  were  to  be  convicted  of  conspiracy, 
forgery  and  various  other  crimes,  and  brought  down  out  of  their  high  posi¬ 
tions,  dishonored  and  disgraced  before  the  world.  Here  was  food  for  scandal. 
Would  anybodj^h^j^the  audacity,  it  was  thought,  to  make  such  an  under¬ 
taking,  try  to  -4e-what  had  been  done,  and  make  such  charges,  unless  they 
could  be  sustained  by  extraordinary  and  most  conclusive  proof  of  enormous 
crimes  committed  by  four  persons  feloniously  combined  together  to  cheat  the 
dead  and  the  living?  But  it  has  all  fallen  fiat.  We  have  now  heard  every¬ 
thing  that  could  be  raked  and  scraped  from  the  four  corners  of  the  globe  to 
support  these  charges,  and  it  is  now  doubtful  whether  this  case  ought  to  be 
treated  with  serious  consideration. 

Instead  of  meeting  the  Great  Mogul  whom  people  thought  we  were  to  en¬ 
counter,  we  find  this  case  was  merely  begun  under  the  shadow  of  his  great 
name,  with  a  view,  probably,  of  striking  terror  to  us  and  giving  notoriety  to  the 
case.  His  name  is  on  the  old  petition  and  that  is  all,  and  his  name  is  all  that 
now  gives  their  case  whatever  dignity  it  has.  The  lion’s  skin  is  there,  but  the 
lion  is  not  there.  His  name  was  used  simply  as  a  bugbear,  and  perhaps  it  is 
one  of  those  many  bricks,  which  he  is  famous  for  keeping,  which  fall  far  short 
of  their  mark.  I  myself,  your  Honor,  never  expected  to  meet  General  Butler 
in  court  in  this  case.  Nobody  was  afraid  to  meet  him.  My  clients  knew  that 
I,  or  anybody  else,  could  carry  their  case  to  success  against  General  Butler  and 
the  devil  combined.  I  did  not  believe,  really,  that  he  had  anything  to  do  with 
the  case.  I  believed  that  the  work  was  done  under  the  shadow  of  his  name  by 
somebody  who  was  putting  that  name  to  the  base  use  of  giving  weight  to  foul 
public  slander  against  honest  and  respectable  persons.  I  believed  this  for  sev¬ 
eral  reasons. 


9° 


First,  I  believed  that  he,  at  least,  was  enough  of  a  lawyer  to  have  some  con¬ 
ception  of  the  difficulty  of  the  work  which  was  undertaken,  if  undertaken 
seriously,  and  that  he  would  have  sense  enough  to  know  that  it  could  not  be 
done.  True  it  is,  the  greater  and  more  difficult  the  work  to  be  done,  the  more 
need  of  a  powerful  man  to  do  the  work,  but  you  will  always  find  that  a  power¬ 
ful  intellect  generally  has  discretion  to  know  what  is  impossible,  and  for  that 
reason  we  find  men  of  the  weakest  mental  power  undertaking  impossible  and 
the  most  difficult  enterprises.  Hence  I  believed  that  the  work  was  undertaken 
either  by  men  who  did  not  know  what  they  were  doing,  or  else  by  men  who 
thought  that  this  onslaught,  coming  in  such  a  way,  with  the  aid  of  the  news¬ 
papers,  behind  a  powerful  name,  charging  monstrous  crimes,  creating  public 
scandal,  would  drive  the  parties  accused  to  make  a  compromise  and  buy  off  the 
accusers. 

Another  reason  why  I  believed  that  the  bearer  of  that  name  on  the  back  of 
the  old  petition  either  did  not  knowingly  have  anything  to  do  with  the  case,  or 
would  not,  after  an  investigation  of  the  facts,  have  anything  to  do  with  it,  was 
that  I  did  not  believe  that  he  would  lend  his  name  to  making  such  charges 
against  such  people,  unless  they  could  be  substantiated  beyond  a  reasonable 
doubt  by  most  extraordinary  and  conclusive  proof,  and  I  knew  this  could  not 
be  done  in  this  case.  Whatever  may  be  said  against  General  Butler,  he  is  not 
totally  depraved.  It  is  evident  that  the  courts  of  justice  could  be  made  by  irre¬ 
sponsible  and  unscrupulous  persons  the  most  oppressive  means  for  the  gratifica¬ 
tion  of  private  malice  and  for  the  purposes  of  extortion,  and  that  one  great 
protection  against  the  prostitution  of  the  courts  to  such  purposes  is  in  the  chai*- 
acter  of  the  legal  profession  ;  and  any  lawyer  who  has  not  such  a  sense  of  justice 
that  he  will  not  engage  in  such  work,  is  not  fit  to  be  a  member  of  the  profession. 
Whatever  may  be  said  in  a  petition  filed  here  is  privileged.  A  man  can  accuse 
another,  in  such  a  petition,  of  all  known  crimes  without  a  shadow  upon  which 
to  base  the  accusations,  and  yet  the  person  making  the  accusations  cannot  be 
indicted  for  publishing  a  false  and  malicious  libel.  The  newspapers  can  pub¬ 
lish  the  accusations,  and  neither  they  nor  the  authors  of  them  be  liable  to  an 
action  for  libel.  Hence  I  did  not  believe  that  an  eminent  public  man,  renowned 
as  one  of  the  ablest  lawyers  in  the  country,  would  have  so  little  sense  of  justice 
as  to  lend  his  great  name  to  the  prostitution  of  a  court  of  justice  to  the  purposes 
of  foul  calumny,  malignity,  revenge  and  extortion,  and  by  the  aid  of  his  name 
give  to  false  and  monstrous  charges  a  dignity  and  weight  which  they  would  not 
otherwise  have. 

I  find  I  was  correct  in  coming  to  these  conclusions.  When  General  Butler 
came  into  the  court  in  this  case  he  was  as  ignorant  of  it  as  the  babe  unborn. 
He  floundered  around  here,  got  everything  wrong  end  first,  drew  on  his  imagi¬ 
nation  for  facts,  and  whatever  was  whispered  to  him  by  his  lieutenant  who  sat 
beside  him,  came  out  in  such  a  perverted  shape  that  nobody  could  tell  what  he 
was  up  to.  All  on  account  of  his  ignorance  of  the  case.  And  then  again, 
when  the  hearing  in  regard  to  the  payment  of  the  $5,000  came  up,  he  knew 
nothing  about  the  case.  He  actually  said  if  I  would  show  that  his  clients  were 


paid  $§,ooo,  he  would  give  up  the  case.  And  when  the  compromise  was 
shown  to  him  he  was  completely  confounded,  saw  he  had  no  case,  and  was  as 
good  as  his  word, — went  out  of  court  in  disgust  and  never  appeared  in  the  case 
again. 

This  proceeding,  brought  forward  in  this  way  under  the  name  of  one  man 
and  prosecuted  in  court  by  another,  reminds  me  of  an  anecdote  which  I  will 
relate  to  the  court,  although  I  once  had  occasion  to  relate  it  elsewhere.  Once 
upon  a  time  a  traveller  entered  Philadelphia  on  the  cars  and  went  to  the  front 
of  the  depot,  thinking  he  would  procure  the  best  conveyance  he  could  find  to 
take  him  to  the  house  of  a  friend  in  a  fashionable  quarter  of  the  city.  He 
wanted  to  go  in  good  style.  He  saw  standing  across  the  street  opposite  the 
depot  door  an  elegant  conveyance,  a  superb  pair  of  high-spirited  horses,  well 
equipped,  and  a  very  stylish  carriage,  on  which  sat  a  slick  and  nicely  dressed 
driver,  who  shouted  to  the  traveller  asking  him  if  he  wanted  a  carriage.  This 
elegant  conveyance  was  just  what  the  traveller  wanted,  and  even  surpassed  his 
expectations.  He  had  a  little  luggage,  so  he  handed  his  check  to  the  driver 
and  waited  for  him  to  go  round  to  the  rear  of  the  depot  where  his  luggage  was  ; 
and  pretty  soon  the  traveller,  left  there  by  the  driver  to  reflect  upon  the  elegant 
appearance  which  he  would  make  going  to  the  house  of  his  friend,  had  his  ex¬ 
pectations  greatly  let  down  by  seeing  this  same  driver  come  up  to  the  door  with 
an  altogether  different  conveyance,  —  a  pair  of  lean,  miserable,  ill-harnessed 
horses,  tied  to  a  shabby  old  hack.  The  driver  jumped  down  from  the  seat, 
opened  the  door  and  told  the  traveller  that  his  carriage  was  ready.  “  That,” 
said  the  traveller,  “  is  not  the  carriage  which  I  engaged,  I  engaged  that  elegant 
conveyance  which  you  had  across  the  way.”  “Yes,”  said  the  driver,  “that  is 
the  carriage  that  gets  the  business  ;  this  is  the  carriage  that  does  the  job.” 

And  that  is  the  way  in  which  the  public  has  been  treated  in  this  case.  The 
thing  promised  has  not  been  the  thing  furnished.  The  expectation  of  the  pub¬ 
lic  was  aroused  by  the  promise  of  that  old,  superb  and  white-plumed  war- 
horse,  drawing  after  him  like  a  chariot  of  fire  his  old  thundering  petition, 
spreading  dismay  in  every  direction.  That  is  the  carriage  that  gets  the  busi¬ 
ness.  I  will  not  carry  out  the  parallel  exactly.  But  this  great  public  ex¬ 
pectation  was  to  be  disappointed  by  mere  child’s  play, — the  appearance  on  the 
scene  of  action  of  a  youth  trundling  his  little  wheelbarrow  petition,  and  flying 
his  paper  kite  of  an  opening  speech.  That  is  the  carriage  that  does  the  job. 

But  because  so  much  expectation  has  been  raised,  although  there  has  been 
such  a  falling  off,  letting  down  and  disappointment,  and  because  there  has  been 
so  much  sensation  created,  the  respondents  deem  it  important  to  demonstrate 
this  completely,  as  far  as  possible,  so  that  it  may  be  seen  what  a  trivial  case 
and  what  mere  child’s  play  this  is. 

Now  then  I  come  to  the  case.  I  promised  in  my  opening  argument  that  we 
would  go  further  than  the  law  required,  and  would  show  all  that  would  be  re¬ 
quired  to  establish  the  will  of  October  5,  1864,  as  the  last  valid  will  and  testa¬ 
ment  of  Ebenezer  Smith, — to  establish  it  de  novo.  It  is  provided  by  the  laws 
of  this  Commonwealth  in  General  Statutes,  chapter  92,  sections  1,  2  and  6, 


92 


that  “  every  person  of  full  age  and  of  sound  mind”  may  dispose  of  his  property 
by  his  last  will  and  testament  in  writing ;  and  no  will  shall  be  valid  unless  it 
is  in  writing  and  signed  by  the  testator,  or  by  some  peison  in  his  presence  and 
by  his  express  direction,  and  attested  and  subscribed  in  his  presence  by  three  or 
more  competent  witnesses. 

I  shall  consider  first  the  question  of  testamentary  capacity.  Was  Ebenezer 
Smith,  at  the  time  of  the  execution  of  that  will,  of  sound  mind?  What  is  the 
legal  meaning  of  the  term  “of  sound  mind?”  It  is  well  known  that  a  greatly 
enfeebled  mind  may  be  a  sound  mind,  within  the  meaning  of  the  law.  If 
Ebenezer  Smith  had  sufficient  mind  to  remember  his  immediate  family  and 
property  and  to  understand  what  was  done,  he  was  legally  of  sound  mind, 
although  very  sick,  and  his  mind  greatly  enfeebled.  Now  to  show  the  utter 
absurdity  of  the  idea  that  he  was  not  at  the  time  of  the  execution  of  that  will, 
legally  speaking,  of  sound  mind,  I  will  refer  to  a  few  cases  of  contested  wills  in 
which  this  question  has  been  considered  of  how  much  mind  a  man  must  have 
to  make  a  valid  will.  Now  I  will  refer  to  the  case  of  Hathorn  v.  King ,  S 
Mass.  371.  At  11  o’clock  in  the  forenoon,  the  testatrix,  being  then  very  ill, 
gave  directions  as  to  preparing  her  will,  and  she  continued  sinking  until  6 
o’clock  in  the  afternoon  of  the  same  day,  when  she  executed  the  will,  and  at  8 
1-4  o’clock,  2  1-4  hours  afterwards,  she  died.  The  will  was  sustained,  ap¬ 
parently  against  the  opinion  of  the  attending  physicians  as  to  her  sanity. 

The  case  of  Stone  v.  Dctmoji ,  12  Mass.  4S8,  is  to  this  effect:  If  a  lunatic 
under  guardianship  be  restored  to  his  reason,  he  may  make  a  will,  although  the 
letters  of  guardianship  be  unrepealed. 

The  case  of  Breed  v.  Pratt ,  18  Pickering,  1 1 5 ,  where  the  decision  is  given 
by  Shaw,  C.  J.  :  The  testator  was  a  man  of  peculiar  character  and  habits,  and 
had  long  been  under  guardianship,  as  a  person  non  conipos  me?itis ,  and  during 
all  the  time  of  his  guardianship,  and  at  the  time  of  making  the  will,  the  execu¬ 
tor,  (being  the  principal  devisee  and  having  married  the  testator’s  daughter  who 
had  deceased  without  issue  before  the  making  of  the  will),  was  hhnself  the 
testator’s  guardian.  The  heirs-at-law  contested  the  will,  but  the  will  was  sus¬ 
tained,  the  court  holding  that  a  person  under  guardianship  as  non  compos  mentis 
may  make  a  will,  if  he  is  in  fact  of  sound  mind  at  the  time  of  its  execution, 
and  at  the  same  time  holding  that  the  fact  of  the  guardianship  was  prima  facie 
evidence  of  insanity  and  incapacity  to  make  a  will,  and  made  it  incumbent  on 
the  executor  to  show  beyond  a  reasonable  doubt  that  the  testator  had  such 
mental  capacity  and  such  feedom  of  will  and  action  as  are  requisite  to  render  a 
will  legally  valid.  With  that  great  burden  upon  the  executor,  the  testator 
being  a  man  like  that,  —  under  guardianship, — the  executor  having  been  the 
guardian  and  being  the  principal  devisee,  to  the  exclusion  of  the  heirs-at-law, 
that  will  was  sustained,  and  there  is  the  decision  of  Chief  Justice  Shaw  sus¬ 
taining  it,  in  the  iSth  of  Pickering. 

Another  case  I  will  refer  to  is  Reed's  Will,  2  B.  Monroe,  (  Ky. )  page  79- 
The  probate  or  county  court  rejected  the  will,  and  it  went  to  the  Court  of 
Appeals.  The  only  litigated  question  was  that  of  testamentary  capacity.  The 


93 


opinions  of  all  the  subscribing  witnesses,  and  of  some  other  witnesses,  were  that 
the  testator  was  of  unsound  mind.  He  was  more  than  So  years  of  age,  had  been 
a  peculiar  man,  and  was  so  afflicted  with  palsy  that  he  could  not  write,  or  even 
feed  himself.  But  the  Court  of  Appeals  gathered  from  circumstances  and  some 
other  evidence  that  he  was  rational  enough,  for  a  person  of  his  great  age,  and 
sustained  the  will. 

Another  case  to  which  I  will  refer  your  Honor  is  the  case  of  Van  Alst  v. 
Hunter,  5  Johnson’s  Chancery,  page  158,  where  Chancellor  Kent  gives  the 
opinion  of  the  Court  as  follows  : 

“  The  testator  was  between  90  and  100  years  of  age  when  he  made  his  will,  but  it  is  well  un¬ 
derstood  that  age  alone  will  not  disqualify”  (I  am  using  his  words)  “a  person  from  making  a 
will,  provided  he  has  a  competent  possession  of  his  mental  faculties.  ‘A  man  may  freely  make 
a  testament,  how  old  soever  he  may  be,  for  it  is  not  the  integrity  of  the  body,  but  of  the  mind, 
that  is  requisite  in  testaments.’  This  has  been  the  law  in  every  age.  The  law  looks  to  the 
competency  of  the  understanding;  neither  age,  nor  sickness,  nor  extreme  distress  or  debility 
of  body  will  affect  the  capacity  to  make  a  will,  if  sufficient  intelligence  remains.”  “  The 
will  of  such  an  aged  man  ought  to  be  regarded  with  great  tenderness.”  “  The  failure  of 
memory  is  not  sufficient  to  create  the  incapacity,  unless  it  be  quite  total,  or  extend  to  his  im¬ 
mediate  family  or  property.  The  want  of  recollection  of  names  is  one  of  the  earliest  symptoms 
of  a  decay  of  the  memory,  but  this  failure  may  exist  to  a  very  great  degree,  and  yet  the  solid 
powar  of  understanding  remain.” 

I  refer  also  to  the  case  of  Stevens  v.  Vancleve ,  4  Washington  Circuit  Court , 
362.  (My  law  library  brought  into  court  in  this  case  consists  of  only  about 
two  books). 

The  testator  in  this  case  was  in  bed  when  he  made  his  will,  having  been  struck  with  palsy, 
which  entirely  disabled  one-half  of  his  body.  He  was  rather  imbecile  before  the  stroke  of  the 
palsy.  On  the  other  side  a  great  number  of  witnesses  were  examined,  who  deposed  that  the 
memory  of  the  testator  was  greatly  impaired,  even  before  the  last  stroke  of  the  palsy  ;  that  he 
would  ask  foolish  questions,  and  enquire  the  names  of  his  former  acquaintances  who  called 
to  see  him.  Upon  one  occasion,  he  enquired  how  a  particular  acquaintance  of  his  was,  and  being 
answered  that  he  was  dead,  he,  not  long  afterwards,  expressed  a  wish  to  see  him,  At  another 
time,  he  mistook  one  of  his  nieces  for  a  grand-daughter  who  had  long  before  been  dead. 
Many  similar  instances  of  a  great  decay  in  his  memory  were  stated  by  these  witnesses.  After 
the  last  stroke  of  the  palsy,  they  never  heard  him  speak,  although  he  would  sometimes  make  a 
noise,  as  if  he  desired  to  speak ;  that  when  they  called  to  see  him,  he  lay  in  a  state  of  insensi¬ 
bility,  with  a  vacant  stare,  and  apparently  unconscious  of  anything,  neither  speaking  to  nor 
noticing  those  who  addressed  him,  not  even  his  own  daughters.  That  he  was  entirely  childish, 
as  well  as  helpless  ;  and  was  treated  as  if  he  had  been  an  infant.  These  witnesses  all  concur  in 
opinion  that  the  testator  was  at  no  time,  during  his  last  sickness,  competent  to  make  a  will,  or 
to  transact  any  other  kind  of  business,  and  that  his  mind  and  judgment  were  entirely  prostrated. 
His  hand  was  guided  also  in  making  the  signature.  Here  is  what  the  Judge  says  as  to  the  mean¬ 
ing  of  the  terms  “  of  sound  and  disposing  mind  and  memory”  :  “  He  must  have  memory.  A  man 
in  whom  this  faculty  is  totally  extinguished  cannot  be  said  to  possess  understanding  to  any  de¬ 
gree  whatever,  or  for  any  purpose.  But  his  memory  may  be  very  imperfect ;  it  may  be  greatly 
impaired  by  age  or  disease.  He  may  not  be  able,  at  all  times,  to  recollect  the  names,  the  persons 
or  the  families  of  those  with  whom  he  had  been  intimately  acquainted;  may  at  times  ask  idle1 
questions,  and  repeat  those  which  had  before  been  asked  and  answered,  and  yet  his  understanding 
may  be  sufficiently  sound  for  many  of  the  ordinary  transactions  of  life.  He  may  not  have  suffi¬ 
cient  strength  of  memory  and  vigor  of  intellect  to  make  and  to  digest  all  the  parts  of  a  con¬ 
tract,  and  yet  be  competent  to  direct  the  distribution  of  his  property  by  will.  This  is  a  subject 

*3 


94 


which  he  may  possibly  hare  often  thought  of,  and  there  is  probably  no  person  who  has  not  ar¬ 
ranged  such  a  disposition  in  his  mind  before  he  committed  it  to  writing.  More  especially,  in 
such  a  reduced  state  of  mind  and  memory,  he  may  be  able  to  recollect  and  to  understand  the 
disposition  of  his  property  which  he  had  made  by  a  former  will,  when  the  same  is  distinctly  read 
over  to  him.  The  question  is  not  so  much  what  was  the  degree  of  memory  possessed  by  the 
testator,  as  this — Had  he  a  disposing  memory?  Was  he  capable  of  recollecting  the  property  he 
was  about  to  bequeath ;  the  manner  of  distributing  it,  and  the  objects  of  his  bounty  ?  To  sum 
up  the  whole  in  the  most  simple  and  intelligent  form, — Were  his  mind  and  memory  sufficiently 
sound  to  enable  him  to  know  and  to  understand  the  business  in  which  he  was  engaged  at  the 
time  when  he  executed  his  will  ?” 

I  will  refer  now  to  the  case  of  Burger  v.  Hill ,  i  Bradford,  360. 

“  The  testator’s  dissolution  was  near  at  hand;  he  was  incapable  of  moving  his  limbs;  his 
hand  was  nerveless,  so  that  he  could  not  write  his  name,  and  he  spoke  with  difficulty.  His 
condition  of  body  and  mind  showed  physical  and  mental  prostration,  loss  of  active  and  originat¬ 
ing  power,  of  attention  and  connected  thought,  with  sufficient  intelligence,  however,  when  the 
faculties  were  aroused  and  fixed  upon  any  particular  point.”  A  doctor  who  saw  him  the  day  be¬ 
fore  gave  the  opinion  that  he  was  idiotic.  A  clergyman  who  saw  him  a  few  minutes  after  the 
will  was  executed,  testified  that  his  mind  was  weak  and  wandering.  The  will  was  admitted  to 
probate.  And  this  is  the  summing  up  of  the  Judge: — “The  judicial  interpretation  given  to 
these  terms  (soundness  or  unsoundness  of  mind  and  memory)  leads  to  the  established  proposi¬ 
tion  that  mere  imbecility  or  weakness  of  understanding  or  memory  is  not  sufficient  of  itself  to 
disable  a  person  to  dispose  of  his  property  by  will ;  if  he  be  not  totally  deprived  of  reason,  he  is 
the  lawful  disposer  of  his  property.” 

I  will  next  refer,  and  finally  refer,  to  a  case  which  has  received  a  great  deal 
of  criticism,  I  admit,  in  consequence  of  the  conclusion  arrived  at  in  regard  to 
that  particular  case,  although  I  think  it  is  sustained  by  all  the  authorities  which 
are  cited  in  that  case.  I  refer  to  the  case  of  Steuoart  v.  Lispenard ,  26  Wen¬ 
dell,  255,  not  as  an  authority  but  because  it  is  an  illustration  or  an  example  of 
what  a  will  has  been  admitted  to  probate  after  it  has  been  thoroughly  contested. 
That  case  went  first  through  the  Probate  Court  and  was  rejected  ;  went  up  to 
the  next  court  and  was  formally  rejected,  I  think  without  any  hearing;  went  up 
to  Chancellor  Walworth,  he  considered  it  and  rejected  the  will ;  finally  it  went 
up  to  the  Court  of  Errors,  and  there  were  some  three  or  four  hundred  pages  of 
testimony  and  arguments  of  counsel,  and  the  will  was  set  up,  in  the  face  of  so 
much  against  it.  And  besides  that,  the  general  opinion  was,  and  almost  every¬ 
body  believed,  that  the  person  who  made  that  will  was  an  idiot.  And  her 
father  in  his  will,  (  Alice  Lispenard  was  the  name  of  the  testatrix)  h^d  this 
clause  : — 

“And  as  it  has  pleased  Almighty  God  that  my  daughter  Alice  should  have  such  imbecility  o  f 
mind  as  to  render  her  incapable  of  managing  or  taking  care  of  property,  my  will  further  is,  tha* 
she  be  allowed  for  her  maintenance  the  sum  of  five  hundred  dollars  annually  during  her  natu¬ 
ral  life.” 

“  In  support  of  the  application  to  admit  the  will  to  probate,  it  was  shown  that  until  the  age 
of  eight  or  nine  years  Alice  had  as  much  intellect  and  intelligence  as  children  generally,  and 
partook  in  the  sports  and  amusements  of  children ;  that  she  learned  to  spell  and  could  read  a 
little  in  the  spelling-book,  but  was  inattentive,  and  her  father  would  not  permit  her  preceptress, 
employed  as  a  teacher  in  the  family,  to  insist  upon  her  applying  herself  to  her  studies,  and  after 
an  ineffectual  effort  at  a  school  in  the  neighborhood  to  educate  her,  all  attempts  in  that  respect 
were  abandoned.  Her  temper  was  very  bad ;  she  was  sullen  and  obstinate,  would  cry  when 
her  play-mates  offended  her,  run  in  and  tell  her  father,  who  would  coax  her  and  indulge  her  in 


95 


all  her  whims.  Her  parents  did  not  attempt  to  control  her ;  on  the  contrary,  she  controlled  her 
parents,  giving  them  no  rest  until  they  yielded  to  her  wishes.  She  was  permitted  to  drink  as 
much  strong  beer  as  she  liked,  and  subsequently  wine  and  brandy.  She  soon  became  daily  in¬ 
toxicated.  This  course  of  conduct  was  contiuued  during  the  lifetime  of  her  father,  and  whilst  she 
resided  with  her  brother  Leonard  she  was  still  indulged  in  the  use  of  strong  drinks,  but  not  to 
the  same  extent  as  during  the  life  time  of  her  father.” 

Then  it  goes  on  in  further  support  of  the  will.  Habits  changed,  she  got  under  kind  treat¬ 
ment  of  her  brother-in-law ;  he  gave  her  little  occupations  to  do,  such  as  keeping  the  key  of 
hie  closet  in  the  house,  running  of  errands, — a  girl  35  years  of  age  treated  in  that  way. 

“  There  were  many  witnesses  examined  on  both  sides ;  those  called  in  opposition  to  the 
granting  of  probate  generally  expressing  the  opinion  that  she  was  wholly  incapable,  whilst 
those  produced  in  support  of  the  application  for  probate,  expressed  the  opinion  that  she  was  fully 
capable  to  make  a  will.  Most  of  the  former  class  formed  their  opinions  of  the  mind  and  under¬ 
standing  of  Alice,  from  her  appearance,  peculiar  manner  and  deportment,  as  exhibited  previous 
to  her  removal  to  the  house  of  Mr.  Stewart,  when  she  was  looked  upon  and  treated  as  an  idiot, 
they  having  had  no  conversation  with  her,  deeming  her  incapable  of  conversing  rationally  on 
any  subject;  whilst  the  opinions  of  many  of  the  latter  class  of  witnesses  were  formed  after  her 
removal  to  the  house  of  Mr.  Stewart,  where  she  met  with  kindness,  attention  and  respect,  and 
was  treated  like  a  rational  being.  Several  of  these  latter  witnesses  stated  that  their  impres¬ 
sions  as  to  the  state  of  the  mind  of  Alice  when  they  first  saw  her  were  very  unfavorable,  but 
from  constant  intercourse,  and  frequent  and  familiar  conversation  with  her,  these  impressions 
had  been  removed,  and  they  had  come  to  the  conlusion  that,  though  her  mind  was  not  naturally 
strong,  she  possessed  ordinary  reasoning  and  discriminating  faculties,  and  in  confirmation  of 
their  opinions,  many  of  the  facts  above  detailed,  showing  that  she  was  endowed  with  reason 
and  understanding ,  were  related  by  them.’’ 

Here  is  a  little  of  the  opinion  in  the  case  :  "To  establish  any  standard  of  intellect  or  infor¬ 
mation  beyond  the  possession  of  reason  in  its  lowest  degree,  as  in  itself  essential  to  legal 
capacity,  would  create  endless  uncertainty,  difficulty  and  litigation,  would  shake  the  security  of 
property,  and  wrest  from  the  aged  and  infirm  that  authority  over  their  earnings  or  savings 
which  is  often  their  best  security  against  injuryand  neglect.  If  you  throw  aside  the  common 
law  test  of  capacity,  then  proofs  of  wild  speculations  or  extravagant  and  peculiar  opinions,  or 
of  the  forgetfulness  or  the  prejudices  of  old  age,  might  be  sufficient  to  shake  the  fairest  con¬ 
veyance,  or  impeach  the  most  equitable  will.  The  law,  therefore,  in  fixing  the  standard  of 
positive  legal  competency,  has  taken  a  low  standard  of  capacity;  but  it  is  a  clear  and  definite 
one,  and  therefore  wise  and  safe.  It  holds,  (  in  the  language  of  the  latest  English  Commen¬ 
tator,  )  that  ‘  weak  minds  differ  from  strong  ones  only  in  the  extent  and  power  of  their  faculties  ; 
but  unless  they  betray  a  total  loss  of  understanding,  or  idiocy,  or  delusion,  they  cannot  property 
be  considered  unsound.’  ” 

So  we  see,  may  it  please  your  Honor,  in  what  cases  wills  have  been  admitted 
to  probate  when  contested,  and  what  has  been  determined  to  be  sound  mind. 
Now  let  us  apply  the  law  to  the  case  of  Ebenezer  Smith.  These  persons  were 
of  rather  weak  intellect,  even  when  in  good  health,  generally  unlearned  and  il¬ 
literate.  But  Ebenezer  Smith,  up  to  his  last  sickness,  is  admitted  on  all  hands 
to  have  been  one  of  the  keenest  men  who  ever  lived  in  Boston,  long-headed, 
far-seeing,  of  very  strong  character,  of  indomitable  will.  Mr.  Clapp,  the  pe¬ 
titioners’  own  witness,  he  himself  being  a  very  smart  man,  who  has  come  in 
contact  with  a  great  many  smart  men,  says  : — “  He  was  the  smartest  business  man 
I  ever  came  in  contact  with  since  I  have  been  on  the  list  of  action  and  this  is 
the  current  of  all  the  testimony  of  any  account  or  value.  Here  manifestly  was 
a  mind  which  might  have  been  greatly  enfeebled,  and  still  perfectly  sound,  in 
the  legal  meaning  of  that  term. 


96 


Now  let  us  see  what  was  the  mental  condition  of  Ebenezer  Smith  when  that 
will  was  executed.  But  first,  on  what  day  was  it  executed?  We  have  some 
very  positive  testimony  upon  that  point,  —  not  negative  but  positive,  —  which  I 
will  briefly  sum  up,  as  to  the  day  on  which  it  was  executed.  First ,  the  will 
was  dated  October  5th.  This  alone  raises  the  presumption,  the  legal  presump¬ 
tion,  that  it  was  executed  October  5th.  It  is  written  evidence,  not  subject  to 
the  defects  of  memory.  Second ,  the  charge  upon  the  day  book  of  Mr.  Rollins 
who  drew  the  will  is  as  follows: —  “  1864  October  5th,  Ebenezer  Smith  to 

drafting  your  will  this  day."  Mr.  Rollins  says  “  my  general  rule  is  to  put 
down  the  charge  the  very  day  the  service  is  performed.  I  have  no  doubt  what¬ 
ever  that  the  will  was  drawn  October  5th,  1864.”  And  here  I  will  make  just  a 
little  excursion.  I  will  make  just  one  digression,  as  it  occurs  to  me  now,  and 
that  is  this,  and  I  may  forget  it  if  I  should  let  it  go,  that  the  charge  for  making 
that  will  is  to  Ebenezer  Smith ;  it  was  drawn  for  Ebenezer  Smith,  Isaac  going 
to  Rollins’s  office  as  his  agent,  and  in  the  course  of  the  case  we  shall  see  that 
he  was  his  agent  and  went  there  for  his  father,  and  Rollins  made  the  charge  for 
writing:  the  will  to  his  father.  Now  to  come  back  to  this  evidence  of  Rollins 
contained  in  his  book  and  in  what  he  says  of  his  general  habit.  This  is  better 
evidence  than  mere  unaided  memory,  and  it  enables  Isaac  to  fix  most  positively 
the  day  on  which  it  was  executed  ;  because  he  swears  very  positively  that  he 
took  the  will  as  soon  as  drawn,  went  directly  to  the  house,  and  it  was  executed 
on  that  day.  Third ,  Isaac,  was  comparatively  a  stranger  in  Boston,  who  had 
not  lived  here  for  30  years,  —  had  been  here  very  seldom,  at  no  time  more  than 
a  day  or  two.  Somebody  told  him  to  go  to  Rollins  and  have  the  will  drawn. 
Isaac  says  it  was  Eliza.  Eliza  says  it  was  Sarah  ;  but  Sarah  did  not  know 
Rollins,  and  Rollins  says  he  never  saw  Sarah  in  his  life.  On  the  other  hand, 
Rollins  had  been  the  attorney  of  Eliza’s  husband  and  was  her  attorney  in  the 
settlement  of  her  husband’s  estate.  At  any  rate,  on  being  told  to  go  to  Rol¬ 
lins,  he  went  out,  ostensibly  to  have  the  will  drawn,  returned  with  the  will,  said 
he  had  been  delayed  because  Rollins  was  out,  and  the  will  was  executed  on  that 
day.  Even  Eliza  says  so.  To  make  this  out  any  day  later  than  October  5th, 
it  is  necessary  to  construct  the  absurd  theory  that  when  told  to  go  to  Rollins, 
Isaac  already  had  the  will  in  his  pocket,  and  that  his  going  out  was  a  mere  pre¬ 
tence,  and  that  he  was  roaming  about  the  streets  of  Boston  to  kill  time,  until 
about  time  enough  had  elapsed  for  drawing  a  will.  And  what  conceivable 
reason  or  motive  for  such  a  pretence  ?  And  then  consider  the  remarkable  co¬ 
incidence  that  out  of  the  thousand  lawyers  of  Boston,  Isaac,  a  stranger  in  the 
city,  should  already  accidentally  have  hit  upon  the  very  lawyer  to  whom  he  was 
afterwards  told  by  his  sister  to  go  and  should  beforehand  have  got  him  to  draw 
that  very  will  in  those  very  same  terms  !  It  is  absurd.  So  circumstances  prove 
that  the  will  was  executed  on  the  5th,  and  circumstance  and  probability  add 
weight  to  Isaac’s  testimony.  Fourth ,  Dr.  Thorndike  testifies  that  he  is  able  to 
fix  the  date  of  the  execution  of  the  will  of  October  5th  by  the  date  of  the  ex¬ 
ecution  of  the  codicil  of  October  1st,  in  this  way:  —  that  the  codicil  was 
executed  Saturday  evening  October  1st ;  Isaac  arrived  Sunday  morning  October 


97 


2nd  ;  on  Monday  he  tried  to  see  the  codicil  of  Sarah,  but  could  not,  and  went 
out  to  see  his  sister  Eliza ;  and  on  Tuesday  she  came  and  brought  a  nurse  who 
was  not  acceptable  to  Mrs.  Ebenezer  Smith,  and  that  evening  Dr.  Thorndike 
engaged  Mrs.  Giles,  and  took  her  to  the  house  ;  and  on  the  day  following, 
which  was  Wednesday,  the  will  was  executed,  and  Isaac  went  to  New  \  ork 
that  evening.  Dr.  Thorndike  further  testifies  that  Isaac  did  not  return  to  Boston 
until  October  12th  and  was  not  here  between  the  5th  and  12th.  Here  is  Dr. 
Thorndike’s  testimony  on  two  points  :  —  that  the  will  was  positively  executed 
on  the  5th,  and  that  it  could  not  have  been  executed  later  with  the  presence  of 
Isaac,  because  he  was  not  here.  Fifth ,  It  is  conceded  that  Isaac  did  go  to  New 
York  October  5th.  There  is  no  doubt  whatever  about  that,  and  Isaac  testifies 
that  he  was  not  thereafter  in  Boston  until  the  12th.  Sixth ,  Edward  D.  Sohier’s 
minutes  of  the  statement  of  Mrs.  Giles,  taken  down  14  years  ago,  show  that 
she  went  to  Mr.  Smith’s  house  the  night  before  the  will  was  signed,  and  she 
went  to  Mr.  Smith’s  house  October  4th.  Seventh ,  now  here  is  evidence  enough 
already,  six  sources  of  positive  evidence,  circumstantial  and  that  of  witnesses, 
six  sources  already,  followed  up  with  the  seventh  which  was  not  necessary  to 
get,  but  which  is  stronger  than  all  the  rest.  The  records  of  the  bank  in  New 
York  show  that  Isaac  was  in  New  York  on  the  6th,  7th,  8th,  9th,  and  10th  of 
October  1864.  There  is  the  evidence  on  the  date  on  which  that  was  executed, 
and  yet  I  suppose  you  will  hear  this  counsel  of  the  petitioners,  against  that, 
undertaking  to  argue  to  your  Honor,  and  to  insult  you  with  argument,  to  show 
that  that  will  was  executed  on  the  9th  or  10th  of  October  1864,  on  the  worthless 
testimony  of  that  miserable  Giles  woman. 

And  against  all  this  evidence  is  the  evidence  of  an  ignorant  woman,  Mrs. 
Giles,  on  her  direct  examination  ;  she  depending  upon  bare  memory  for  four¬ 
teen  years,  unaided  by  any  memorandum,  having  no  special  interest  in  the  will. 
On  cross-examination  she  says  in  one  place  that  she  will  not  swear  positively 
that  the  will  was  not  executed  the  day  after  she  went  to  Mr.  Smith’s  house,  and  in 
answer  to  cross-interrogatory  144  she  does  not  feel  willing  to  swear  positively 
that  the  will  was  not  executed  on  the  day  Isaac  went  to  New  York,  the  day 
after  she  went  to  Mr.  Smith’s.  She  swears  positively,  however,  that  it  was 
executed  after  a  consultation  of  physicians  at  which  Dr.  Lewis  was  present,  but 
it  has  been  conclusively  shown  that  there  never  was  any  such  consultation, 
Dr.  Lewis  having  called  alone  October  5th.  So  she  is  contradicted  by  her  own 
statement  taken  out  of  her  own  mouth  by  Mr.  Sohier  fourteen  years  ago  when 
her  memory  was  fresh,  by  which  she  fixes  the  execution  of  the  will  October 
5th.  And  this  uncertainty  of  memory  which  she  shows  on  the  cross-exami¬ 
nation,  she  naturally  would  show,  or  any  other  woman  who  had  any  honesty 
in  her  nature,  even  a  particle  of  honesty  in  her  nature,  would  be  compelled  to 
show  upon  any  kind  of  an  examination.  Mr.  Chandler :  Were  those  notes 
of  Mr.  Sohier  put  in  evidence?  Mr.  Drury  :  Yes,  sir.  Don’t  you  wish  they 
had  not  been?  Mr.  Chandler  :  Not  at  all. 

Mr.  Drury :  It  is  as  certain  as  anything  can  be  established  by  human  testi¬ 
mony,  that  that  will  was  executed  October  5th,  and  it  cannot,  with  any  reason, 


9s 


or  with  a  particle  of  doubt,  be  contradicted.  Now  I  have  dwelt  carefully  on 
this  point,  because  if  it  was  executed  October  5th,  the  whole  theory  of  the 
petitioners  as  to  Ebenezer  Smith’s  mental  condition  at  the  execution  of  the  will 
is  destroyed.  They  set  out  to  show  that  it  was  executed  on  the  9th  or  10th  of 
October,  as  the  very  foundation  of  their  case,  and  I  find  upon  reading  the 
counsel’s  opening  argument  that  he  did  state  positively  that  it  was  executed  on 
October  9th  or  10th,  and  in  just  the  next  sentence  to  the  one  in  which  he  tried 
to  dodge  the  question  of  the  dates.  He  has  utterly  failed,  and  his  case  is  shown 
to  have  been  built  upon  a  mere  shadow. 

Now  the  will  having  been  executed  on  October  5th,  what  was  Ebenezer 
Smith’s  mental  condition  upon  that  day  ?  You  have  heard  Dr.  Thorndike’s 
testimony  as  to  the  nature  of  Mr.  Smith’s  disease,  and  its  effect  upon  his  mind. 
He  has  treated  a  great  many  similar  cases.  No  respectable  physician  could  be 
found  to  stand  up  here  and  contradict  his  evidence  upon  that  point.  He  was 
Mr.  Smith’s  regular  physician,  and  had  been  for  thirteen  years,  and  had  been 
frequently  consulted  by  him,  was  his  confidential  medical  adviser.  Mr.  Smith’s 
mind  was  not  diseased,  Dr.  Thorndike  said.  The  uncontradicted  evidence  in 
this  case  shows  that  he  was  gradually  growing  feebler  and  feebler  ;  that  he  was 
feebler  on  the  8th  than  he  was  on  the  7th,  feebler  on  the  7th  than  on  the  6th,  fee¬ 
bler  on  the  6th  than  on  the  5th  ;  and  on  the  other  hand  he  was  stronger  on  the 
5th  than  on  the  6th,  and  so  on  down  to  the  day  of  his  death.  So  then,  accord¬ 
ing  to  all  the  evidence  that  there  is  in  this  case,  not  disputed  in  a  single  iota, 
Ebenezer  Smith  was  in  a  better  condition  upon  the  5th  of  October  than  he  was 
three  days  afterwards  on  the  8th.  Now  we  have  very  good  evidence  from  a 
witness  whom  the  petitioners  cannot  contradict,  and  they  called  him  them¬ 
selves, — they  had  to  to  sustain  a  part  of  their  theory, — and  he,  Dr.  Storer,  a 
regular  physician  of  high  character,  testifies  as  to  Mr.  Smith’s  mental  condition 
on  October  8th,  and  he  is  corroborated  by  Dr.  Thorndike.  Dr.  Storer’s  day 
book,  your  Honor,  has  this  entry: — “  Oct.  8,  1864,  Ebenezer  Smith,  Allston 
St.,  Dr.  Thorndike,  $5.”  He  had  known  Mr.  Smith  a  great  many  years.  In 
their  younger  days  they  had  belonged  to  the  same  lodge  of  Odd  Fellows,  and 
they  talked  about  the  old  times,  and  had  a  very  pleasant  conversation.  And 
Dr.  Storer  now  gives  this  testimony  :  — 

“  I  didn't  see  but  that  he  conversed  as  he  always  did ;  his  mind  seemed  to  be  clear,  and  he 
was  very  much  as  I  had  seen  him  about.  I  went  away  with  the  idea  that  his  mind  was  as  clear 
as  it  ever  was,  as  clear  as  minds  usually  are.” 

And  Dr.  Thorndike  says  : 

“  On  the  day  Dr.  Storer  called,  Mr.  Smith  was  perfectly  rational.  They  had  some  pleasant 
conversation.” 

Mrs.  Giles,  the  principal  witness  for  the  petitioners,  upon  whom  they  rely 
chiefly  for  the  support  of  their  whole  case,  says  on  direct  examination  : — 

“  When  I  went  there  he  seemed  to  be  conscious  and  talked ;  he  talked  the  next  day,  and  the 
day  after ;  he  told  me  about  his  coming  to  Boston,  and  gav?  me  a  history.” 

On  the  cross-examination  she  says : 

“  When  the  consultation  of  physicians  took  place,  after  they  had  pronounced  his  case  hopeless, 


99 


he  asked  them  whether  there  wouldn’t  be  a  chance  for  him  if  they  took  off  his  leg  up  to  his  knee. 
The  day  after  I  arrived  there  he  asked  me  to  keep  strict  watch  of  the  table  drawer  in  front  of 
him,  in  which  he  said  valuable  papers  were  deposited.  His  mind  seemed  quite  clear  up  to  the  time 
of  the  consultation.  He  talked  with  me  and  Dr.  Storer  at  the  time  of  the  examination.  Between 
the  time  of  my  going  there  and  the  time  of  that  consultation  he  gave  me  a  history  of  his  first 
days,  when  he  came  to  Boston;  said  he  was  a  mere  boy,  came  with  a  pack  on  his  back,  and 
walked  most  of  the  way.  We  talked  some  about  his  sickness.  He  spoke  about  the  Masonic 
Lodge.  In  the  morning,  before  the  consultation,  he  told  me  who  were  coming,  and  requested 
me  to  be  present.” 

Now  if  your  Honor  please,  all  this  is  said  of  a  man  who,  before  his  last  sick¬ 
ness,  was  a  man  of  great  intellectual  power, — not  a  lunatic,  not  a  weak  minded 
man,  but  a  man  in  whom  the  reasoning  faculties  were  largely  developed.  His 
affectionate  grandchildren  have  such  reverence  for  the  memory  of  their  dear  old 
grandfather  that  they  would  like  to  make  him  out  an  idiot,  if  they  could  find 
anybody  idiot  or  knave  enough  to  so  testify.  This  testimony,  I  say,  is  given 
concerning  a  man  of  high  intellectual  and  reasoning  power,  as  he  appeared  with 
his  mind  unimpaired  by  the  disease  which  weakened  and  enfeebled  his  body. 
This  was  his  condition  October  Sth,  three  days  after  the  will  was  signed.  But 
his  condition  October  5th  was  much  better  than  on  October  Sth.  The  nurse 
cannot  by  any  possibility,  or  by  any  stretch  of  her  imagination,  or  by  any  dis¬ 
tortion  of  her  memory,  make  him  unconscious  until  the  9th  or  10th.  If  the 
will  was  executed  before  October  9th,  she  is  utterly  at  fault.  It  being,  then,  a 
fact  established  beyond  reasonable  doubt,  (I  am  going  through  this  whole  case 
on  the  evidence,  and  I  am  going  to  clinch  every  point  in  the  same  way  that  I 
have  this  as  I  go  along,)  that  the  will  was  executed  October  5th,  what  are  the 
facts  bearing  upon  his  mental  condition  on  that  day,  and  at  the  time  of  the  ex¬ 
ecution  of  the  will, — that  hour,  that  minute,  that  second?  First : — His  condi¬ 
tion  three  days  afterwards  on  October  Sth,  when,  upon  all  the  testimony,  testi¬ 
mony  uncontradicted  and  unquestioned,  he  had  been  gradually  growing  feebler 
and  feebler.  Second : — The  testimony  of  Mrs.  Giles,  the  petitioners’  principal 
witness.  A  great  deal  of  the  talk  of  Ebenezer  Smith  and  of  his  conversation 
of  which  she  speaks  must  have  taken  place  after  the  5th.  And  she  said  ex¬ 
pressly  that  his  mind  seemed  quite  clear  and  he  talked  quite  freely  on  the  5th. 
Third: — The  statement  of  Mrs.  Thorndike, — I  believe  that  has  been  ruled  out? 
I  don’t  know  whether  it  has  been  ruled  out  or  not.  I  offered  it.  Counsel 
once  said  I  might  put  it  in,  he  didn’t  object  to  it,  but  when  I  went  to  put  it  in 
he  did  object. 

McKim ,  y. :  What  is  that?  Mr.  Drury:  That  is  the  statement  of  Mrs. 
Thorndike.  McKim ,  y.  :  That  is  not  in.  Mr.  Drury:  Is  not  in?  McKim , 
y.:  No,  I  dont  remember  its  going  in.  Mr.  Drury  :  Well,  then,  I  will  say, 
Third:  —  The  testimony  of  Isaac  and  the  statement  of  Mrs.  Giles  taken  down 
by  Mr.  Sohier  14  years  ago,  all  to  the  effect  that  he  called  upon  each  of  his 
family  present  and  asked  each  if  they  were  satisfied,  which  fact  shows  a  great 
amount  of  carefulness  and  deliberation,  clear  comprehension,  knowledge, 
memory,  recognition  of  members  of  his  family  and  the  nature  of  the  matter 
then  in  hand.  Fourth: — The  testimony  of  Dr.  Thorndike,  who  appeared  on 


IOO 


the  scene  of  action  just  after  the  will  had  been  executed  while  Mr.  Foster  was 
present,  and  heard  a  pleasant  conversation  between  Mr.  Smith  and  Mr.  Foster, 
and  Mr.  .Smith’s  pertinent  answers  to  questions  put  by  Mr.  Foster  to  him,  giving 
a  clear  recognition  of  Mr.  Foster,  carrying  his  mind  and  memory  back  to  their 
younger  daj’s  and  calling  up  pleasant  reminiscences  of  the  interest  and  enjoy¬ 
ment  which  they  both  mutually  took  in  music.  That  a  pleasant  conversation 
did  take  place  upon  that  solemn  occasion  between  those  two  old  men, — and  it 
was  a  striking  thing  and  would  naturally  impress  itself  upon  a  man’s  mind, 
because  they  were  both  old  men, — that  that  conversation  between  those  two  old 
men  did  take  place,  is  further  testified  to  by  Isaac,  is  contained  in  the  statement 
of  Mrs.  Giles  which  Mr.  Sohier  took  down,  and  to  clinch  it  all,  Mr.  Sohier 
remembers  that  Mr.  Foster,  a  man  highly  esteemed,  of  excellent  and  irreproach¬ 
able  character,  testified  fourteen  years  ago  as  to  that  same  conversation  sub¬ 
stantially  as  Dr.  Thorndike  has  related  it.  Fifth  : — Two  of  the  witnesses  of 
the  will  testified  under  oath, — Andrix  A.  Foster  and  Margaret  Patterson, — that 
they  were  of  the  opinion  that  Mr.  Smith  was  of  sound  mind  when  the  will  was 
executed  ; — Mr.  Foster  fourteen  years  ago  in  this  court;  and  Margaret  Patterson 
also  fourteen  years  ago  in  this  court,  and  again  before  your  Honor  since  this 
case  came  to  trial.  Against  all  this  evidence  there  is  absolutely  nothing  but  the 
evidence  of  Eliza  W.  Smith,  who,  by  the  falsehoods  too  numerous  to  mention 
shown  in  the  course  of  this  investigation  to  have  been  uttered  here  by  her,  is 
totally  discredited  and  shown  to  be  unfit  to  be  believed  under  oath,  and  dis¬ 
credited  by  her  own  son  who  swears  positively  that  she  made  an  altogether 
different  statement  to  him  fourteen  years  ago  ; — there  is  nothing,  I  say,  except 
her  worthless  testimony  and  the  bare  opinion  of  Mrs.  Giles, — that  opinion, 
however,  based  upon  facts  which  even  she  herself  related,  which  facts,  together 
with  her  total  misapprehension  as  to  the  time  when  the  will  was  executed,  and 
her  confusion  of  all  the  occurrences  which  took  place  while  she  was  at  Mr. 
Smith’s,  utterly  discredit  her  opinion,  so  that  she  is  discredited  by  the  testimony 
of  all  and  even  by  the  testimony  of  herself. 

Was  Ebenezer  Smith,  as  alleged  in  that  petition,  when  that  will  was  execut¬ 
ed,  of  unsound  mind  by  reason  of  old  age,  sickness  and  other  causes?  What 
other  causes ,  if  your  Honor  please  ?  They  have  tried  to  make  out  that  he  was 
drunk. 

Mr.  Chandler:  No  such  charge  as  that,  Mr.  Drury.  No  such  word  has 
been  used.  Mr.  Drury :  “  Dosed  with  whiskey  as  a  dernier  resort."  Mr. 

Chandler:  Yes,  sir.  Mr.  Drury:  What  does  that  mean?  That  doesn’t 
mean  drunk  !  There  was  no  insinuation  of  drunk  there  !  Oh,  no.  “  A  rose 
by  any  other  name  would  smell  as  sweet.”  I  don’t  care  whether  you  call  it 
drunk  or  “dosed  with  whiskey,”  you  did  make  the  charge  that  he  was  drunk. 
Mr.  Chandler:  Oh  no,  sir.  You  didn’t  hear  it  from  me.  Mr.  Drury:  And 
that  he  was  made  drunk  by  these  alleged  conspirators.  Mr.  Chandler :  There 
is  nothing  of  the  kind  in  the  language.  You  are  getting  wild.  I  think  we  had 
better  adjourn,  your  Honor,  and  take  a  little  rest.  Mr.  Drury:  I  would 
rather  go  on,  your  Honor,  if  you  can  preserve  order.  What  evidence  is  there 


IO£ 


of  it?  Even  their  witness,  young  Ebenezer  Smith  says  that  he  was  with  his 
grandfather  19  nights  and  until  Mrs.  Giles  was  engaged,  that 

**  I  never  put  a  drop  of  whiskey  in  the  glass  while  I  was  there.  I  always  left  the  glass  with 
about  the  same  quantity  as  there  was  the  night  before.  He  didn’t  take  half  a  glass  in  all  while 
I  was  there.” 

What  does  Mrs.  Giles  say?  She  says  that  she  was  in  the  room  night  and 
day,  that  nobody  else  gave  him  any  whiskey  while  she  was  there,  that  Mrs. 
Ebenezer  Smith  would  bring  in  two-thirds  of  a  tumblerful  which  would  last  24 
hours,  that  at  first  without  assistance  he  would  take  a  swallow  out  of  the  tum¬ 
bler  once  in  three  hours  or  so,  when  he  was  taken  with  spasms  of  pain,  that 
after  he  became  weaker  she  hei'self  would  give  him  a  spoonful  or  two  at  a  time 
with  a  spoon  on  the  occurrence  of  such  spasms,  and  she  adds  : — “  I  don’t  think 
the  man  was  drunk,  of  course  not,  he  didn’t  take  whiskey  enough  for  that.” 

Now  what  other  causes ?  What  is  that  intended  to  cover?  I  supposed  that 
was  intended  to  cover  this  whiskey  charge. 

And  besides  all  this  testimony  as  to  his  mental  condition,  this  direct  evidence, 
the  legal  presumption  is  in  favor  of  the  sanity  of  the  testator,  and  if  there  is  any 
doubt  upon  this  point,  we  are  entitled  to  the  benefit  of  the  doubt,  and  for  that 
proposition,  your  Honor,  I  refer  you  to  the  case  of  Baxter  v.  Abbott ,  7  Gray, 
71.  Now  all  this  evidence  discloses  not  only  testamentary  capacity,  but  a  high 
degree  of  testamentary  capacity.  On  all  this  great  preponderance  of  evidence, 
together  with  the  legal  presumption  of  sanity  ; — the  opinions  of  eminent  physi¬ 
cians  based  upon  his  appearance  and  conversations  three  days  after  the  will  was 
executed,  and  on  the  very  day  and  hour  on  which  it  was  executed, — on  the  verjr 
hour  and  minute  ;  the  opinions  of  two  of  the  subscribing  witnesses  of  the  will ; 
his  deliberation  and  carefulness  when  the  will  was  before  him, — calling  upon 
his  wife  and  children  and  asking  them  each  separately  if  they  were  satisfied, 
and  then  calling  for  his  spectacles  ;  his  conversation  with  his  old  neighbor  about 
the  good  old  times;  the  powers  of  memory  which  he  exhibited,  doing  what  a 
man  of  sound  and  reflective  mind  standing  on  the  brink  of  eternity  and  facing 
the  boundless  and  unknown  future  would  naturally  do, — casting  a  lingering 
look  behind,  taking  an  account  of  his  past  eventful  life,  talking,  soliloquizing 
and  thinking  of  his  boyhood,  his  manhood,  his  trials,  his  struggles,  his  achieve¬ 
ments,  his  disappointments  and  his  transgressions,  and  considering  his  whole 
life  in  the  retrospect,  before  yielding  his  soul  to  the  tender  mercy  of  his  God  ; — 
on  all  this  testimony,  I  say,  your  Honor,  not  depending  entirely  upon  the  frail 
and  naked  memory  of  witnesses  carried  back  behind  a  period  of  14  years,  but 
corroborated  by  records  which  were  providentially  made  at  the  time  and  saved, 
can  your  Honor,  can  anybody,  have  any  possible  particle  of  doubt  that  when 
the  will  was  executed  Ebenezer  Smith  was  of  sound  mind  in  the  legal  meaning 
of  that  term  and  perfectly  capable  of  making  a  valid  will  ? 

Recess  till  2  15  P.  M. 

May  it  please  your  Honor:  I  now  come  to  the  next  point.  Here  we  have  a 
mind  abundantly  capable  to  make  a  valid  will.  Did  he  make  it?  Was  the  will 
duly  executed  by  Ebenezer  Smith?  Here  is  a  will  which  has  been  admitted  to 


H 


102 


probate,  which  has  stood  14  years,  under  which  an  estate  of  a  quarter  of  a  mil¬ 
lion  dollars  has  been  settled  and  distributed,  purporting  to  be  the  will  of  Eben- 
ezer  Smith,  purporting  to  have  been  signed  by  him,  and  actually  attested  by 
three  competent  witnesses.  The  first  evidence  and  the  best  evidence  upon  the 
point  of  the  due  execution  of  the  will,  and  I  may  say  evidence  which  ought  to 
be  conclusive  at  this  late  day,  14  years  after  it  was  recorded,  even  against  the 
testimony  of  the  three  subscribing  witnesses  is  the  evidence  which  the  instru¬ 
ment  bears  upon  its  face.  I  refer  to  the  certificate  of  attestation  : — 

‘‘The  above  instrument  was  signed,  sealed,  published  and  declared  bv  the  above-named  Eben- 
ezer  Smith,  as  and  for  his  last  will  and  testament,  in  the  presence  of  us  the  undersigned,  who,  at 
the  request  of  the  said  Ebenezer,  and  in  his  presence,  and  in  the  presence  of  each  other,  have 
subscribed  our  names  hereto.  Signed,  Andrix  A.  Foster,  Anna  G.  Giles,  Margaret  Patterson.” 

And  here  I  will  make  just  a  little  digression  to  go  over  a  point  which  I  omit¬ 
ted  and  overlooked,  and  that  is  that  that  word  “  fiftft*  day  of  October  is  in  the 
handwriting  of  Mr.  Rollins,  that  it  was  put  in  by  him  and  not  put  in  afterwards, 
he  put  it  there,  Isaac  didn’t  put  it  there.  The  man  who  is  alleged  to  have  been 
instrumental  in  having  it  executed  on  the  9th  or  10th  didn’t  put  it  there,  he  didn’t 
date  it  back,  it  was  put  there  by  Mr.  Rollins  who  drew  the  will. 

Now  considering  that  certificate  as  evidence  of  the  due  execution  of  the  will, 
I  will  say  that  it  seems  to  me  that  the  value  of  evidence  which  depends  upon 
the  memory  of  witnesses  diminishes  with  the  lapse  of  time.  Such  evidence 
grows  weaker  and  weaker  with  age.  Who  can  remember  accurately  all  the 
details  of  a  transaction  fourteen  years  after  it  occurred?  But  in  the  ratio  in 
which  human  memory  grows  dim  and  faded  with  the  lapse  of  time,  and  the 
evidence  depending  thereon  grows  weaker  and  weaker,  in  that  same  ratio  with 
the  lapse  of  time  the  evidence  borne  on  the  face  of  that  instrument  grows 
stronger  and  stronger.  The  legal  presumption  is  that  the  certificate  is  correct. 
If  there  is  anv  doubt  about  its  truth,  we  are  entitled  to  the  benefit  of  the  doubt. 
We  start  with  the  presumption  in  its  favor.  Fourteen  years  after  the  certificate 
was  signed,  one  of  the  witnesses  who  signed  it  impeaches  her  act  and  throws 
discredit  upon  herself  by  saying  her  act  was  false.  Secondly : — The  next  evi¬ 
dence  upon  this  point :  The  three  witnesses  testified  under  oath  fourteen  years 
ago  in  this  court ;  able  and  eminent  counsel  were  present  and  conducted  the 
examination, — Mr.  Solder  and  Mr.  Willard,  counsel  for  the  executors,  Dwight 
Foster  for  the  very  petitioners  who  are  now  here,  Charles  Levi  Woodbury  for 
Thomas  P.  Smith,  Hazelton  &  Ware  for  Arthur  G.  Smith  and  his  two  brothers, 
Eben  and  Alexander.  Here  was  everything  calculated  to  bring  out  the  truth. 
The  parties  represented  by  Hazelton  &  Ware  and  Dwight  Foster, — yes,  and  by 
Charles  Levi  Woodbury,  were  opposed  to  the  will.  The  witnesses  were  care¬ 
fully  examined.  A  shrewd,  careful  and  capable  Judge  presided  at  the  ex¬ 
amination.  In  that  decree  is  implied  the  finding,  (  that  decree  admitting  the 
will  to  probate)  that  the  will  was  signed  by  Ebenezer  Smith,  or  by  some  per¬ 
son  in  his  presence  and  by  his  express  direction,  and  attested  and  subscribed  in 
his  presence  by  three  competent  witnesses.  This  evidence  which  we  here  find 
in  the  decree  of  the  Judge  also  grows  stronger  and  stronger,  and  has  gained 


10.3 

cumulative  power  year  after  year  with  the  lapse  of  time  since  the  decree  was 
auade. 

Now  it  would  be  extremely  dangerous  to  allow  such  evidence,  furnished  on 
the  will  itself  and  by  the  decree  of  a  capable  Judge  after  hearing  the  witnesses 
under  oath  in  court  when  their  memories  were  fresh  and  soon  after  the  will 
was  executed,  to  be  overthrown  by  any  evidence  depending  on  bare  memory 
fourteen  years  afterwards.  I  appeal  to  all  human  experience  of  which  we  know 
when  I  say  no  human  memory  is  sufficiently  retentive  so  that  it  can  be  safely 
relied  on  to  give  accurately  all  the  details  of  a  transaction  fourteen  years  after 
it  occurred.  It  may  retain  parts  substantially,  but  not  the  whole.  Let  us  take 
a  few  out  of  the  many  instances  too  numerous  to  mention  which  have  already 
occurred  in  the  course  of  this  trial.  Dwight  Foster,  although  confident  from 
circumstantial  evidence  that  he  was  present  fourteen  years  ago  in  the  Probate 
Court  at  the  important  hearing  in  which  he  was  greatly  interested,  although  he 
says  the  strong  inference  is  that  he  was  here  and  that  he  believes  he  was  here, 
yet  has  not  the  slightest  recollection  even  of  having  been  present.  Edward  D. 
Sohier,  a  man  of  powerful  intellect,  remembers  but  very  little  of  that  hearing, 
but  one  thing  struck  one  element  in  Mr.  Sohier’s  character, — the  bringing  up 
of  that  scene  of  those  two  old  men,  Ebenezer  Smith  about  to  die  and  old  Mr. 
Foster,  talking  on  that  solemn  occasion  about  their  interest  in  music,  about 
singing  at  the  Park  Street  Church,  and  about  the  Handel  and  Haydn  Society. 
Dr.  Thorndike,  one  of  the  executors  of  the  will,  a  party  greatly  interested  in  the 
hearing,  remembers  hardly  anything  about  it  except  that  he  was  here.  Com¬ 
pare  the  utterly  contradictory  statements  of  Mrs.  Giles  and  Eliza  W.  Smith,  the 
two  principal  witnesses  of  the  petitioners,  as  to  what  actually  did  take  place 
upon  the  occasion  of  executing  the  will.  All  this  illustrates,  and  in  fact  all 
human  experience  illustrates,  how  unsafe  it  is  to  rely  upon  human  memory 
after  its  impressions  have  become  rubbed  out  and  worn  out  by  the  processes  to 
which  it  has  been  subjected  after  a  period  of  fourteen  years. 

Now  no  record  was  made  at  the  time  of  all  the  details  which  took  place  in 
that  room  on  the  occasion  of  making  this  will.  The  only  record  evidence 
we  have  of  what  took  place  is  that  which  is  borne  upon  this  certificate  on  the 
will — the  certificate  of  attestation — and  the  statement  of  Mrs.  Giles  taken  down 
out  of  her  mouth  by  Mr.  Sohier  fourteen  years  ago  as  to  Mr.  Smith’s  calF- 
Ing  upon  his  wife  and  children  and  asking  them  if  they  were  satisfied,  and  the 
few  other  incidents  therein  recorded.  One  thing,  however,  is  certain, — that 
Isaac  T.  Smith  aided  in  making  that  signature.  I  discard  the  preposterous  idea 
that  there  was  any  intentional  wrong  in  that  act,  because  Isaac  knew  that  by 
the  making  of  that  signature  he  was  deprived  of  a  large  portion,  which  proved 
to  be  over  $15,000,  out  of  his  father’s  estate,  and  that  the  will  gave  him  con¬ 
siderably  less  than  he  would  have  received  as  one  of  his  father’s  heirs-at-law, 
even.  Another  thing  is  certain  : — The  three  subscribing  witnesses  saw  that 
signature  made.  That  they  saw  it  made  is  certain,  although  Mrs.  Giles  says  in 
her  affidavit  that  the  other  witnesses  were  not  present  and  did  not  see  this  sig- 
aatpre  made.  She  has  not  testified  differently  in  the  course  of  this  examination, 


104 


nor  in  her  deposition,  but  this  is  one  of  the  numerous  errors  in  her  testimony. 
In  the  same  affidavit  she  says  that  she  was  the  first  witness  to  sign,  and  that 
the  others  did  not  see  her  sign.  But  here  upon  the  stand  she  says  that  Mr. 
Foster  was  the  first  to  sign,  as  in  fact  it  appears  on  the  face  of  the  will.  Mar¬ 
garet  Patterson  here  upon  the  stand  says  she  saw  the  signature  made.  Mrs. 
Giles  in  her  statement  taken  down  by  Mr.  Sohier  says  that  Mr.  Foster  came  in 
before  the  signature  was  made.  Mr.  Foster  so  testified  here  fourteen  years 
ago.  And  Eliza  W.  Smith, — even  she  testifies  that  Mr.  Foster  was  present. 
Isaac  so  testified.  So  that  the  fact  is  established  beyond  any  reasonable  doubt 
in  spite  of  the  worthless  testimony  of  Mrs.  Giles.  Eliza  says  that  Isaac  placed 
the  pen  in  his  father’s  hand  and  was  standing  upon  his  father’s  left,  that  Mr. 
Smith  could  not  control  the  pen  and  the  pen  began  to  slide  upon  the  paper, 
when  Isaac  stepped  round  to  the  right,  took  hold  of  his  father’s  hand,  and  the 
signature  was  made.  Now  this  may  be  true,  although  it  comes  from  a  lying 
witness,  one  who  has  been  proved  to  be  a  lying  witness,  and  is  not  entitled  to 
much  weight,  but  she  is  the  witness  of  the  petitioners  and  not  ours.  If  true, 
it  shows  plainly  that  Isaac  supposed  that  his  father  was  able  to,  and  that  he 
would,  write  his  name  alone  without  assistance,  and  that  he  stepped  round  from 
the  left  to  the  right  to  assist  in  doing  what  he  saw  his  father  was  trying  to  do 
himself  with  difficulty.  In  some  respects  this  is  consistent  with  the  testimony 
of  Isaac,  who  says  that  he  was  standing  on  his  father’s  left,  and  his  mother 
called  his  attention  to  the  fact  that  his  father  was  finding  difficulty  in  writing 
his  name  and  suggested  that  he  aid  bis  father,  that,  (as  was  perfectly  natural, 
moved  by  natural  impulse),  he  stepped  around  to  his  father’s  right,  his  father’s 
hand  was  moving  in  the  act  of  writing,  he  took  bold  of  his  father’s  hand,  felt 
his  father’s  hand  moving  under  his  and  assisted  his  father  in  writing  his  name. 
Now  I  don’t  care  whether  that  signature  looks  like  the  handwriting  of  Ebenezer 
Smith  or  not.  It  would  be  wonderful  if  it  did  even  if  written  by  him  alone — 
writteVi  at  that  time  when  he  was  in  such  feeble  health.  I  have  seen  a  signature 
of  a  man  written  when  he  was  sick,  and  I  know  that  no  expert  under  heaven, 
by  comparing  it  with  the  genuine  signatures  of  that  man  written  when  he  was 
well,  could  say  positively  that  it  was  written  by  the  same  man  simply  ffom  its 
appearance.  I  repeat,  I  don’t  care  whether  that  signature  resembles  the  hand¬ 
writing  of  Ebenezer  Smith  or  not.  1  don’t  care  if  but  very  little  of  Ebenezer 
Smith’s  body  went  into  that  signature.  I  don’t  care  if  the  degree  of  bodily 
power  which  Ebenezer  Smith  put  into  that  signature  was  equal  to  only  the 
one-hundredth  part  of  the  bodily  power  put  into  it  by  him  who  guided  Ebenezer 
Smith’s  hand.  A  will  is  not  the  offspring  of  a  man’s  body,  but  of  his  mind. 
I  don’t  care  whether  his  body  went  into  the  signature  or  not.  If  his  mind  went 
into  it,  if  his  will,  his  willingness,  his  acquiescence  or  his  consent  went  into  it, 
I  am  satisfied.  If  the  signature  was  made  in  that  way  with  the  consent  or 
acquiescence  of  Ebenezer  Smith  by  word  or  act,  it  is  his  lawful  signature,  and 
none  but  a  naturally  base,  depraved,  wicked  and  malignant  heart  could  per¬ 
ceive  any  wrong  in  it.  This  guiding  of  a  testator’s  hand  is  a  very  common 
occurrence,  because  a  great  proportion  of  tire  wills  which  are  made  are  njade 


when  the  testators  are  in  feeble  health  and  near  their  decease,  towards  the  end 
of  their  lives,  when  men  begin  to  think  of  death  and  the  disposition  which 
they  wish  to  be  made  of  their  property  after  they  are  dead.  If  the  testator 
directs  another  to  sign  his  name,  it  satisfies  the  law,  it  is  legally  valid.  If 
another  writes  the  testator’s  name  without  his  direction  and  the  testator  makes 
his  mark,  it  satisfies  the  law,  it  is  the  testator’s  signature.  If  the  testator’s 
name  is  written  by  another  and  the  testator  traces  over  it  with  a  dry  pen,  it 
satisfies  the  law  and  is  the  testator’s  signature.  So  if  the  pen  is  held  in  the 
testator’s  hand  and  another  with  his  consent,  express  or  implied,  by  word  or  by 
act,  takes  hold  of  that  hand  and  exerts  the  power  used  in  writing  his  name,  it 
is  the  testator’s  lawful  signature.  Stevens  v.  Van  Cleve,  4  Washington,  C.  C. 
269.  I  will  cite  this  case  which  I  have  already  cited  in  the  previous  part  of 
my  argument : — 

“  The  submission  of  the  testator,  who,  in  relation  to  this  part  of  the  case,  is  to  be  considered 
as  fully  cognizant  of  what  he  was  doing,  to  have  his  hand  directed  so  as  to  write  his  name,  was 
at  least  equivalent  to  an  express  direction  to  another  to  sign  his  name,  for  it  cannot  be  denied 
that  under  the  statute  the  direction  to  subscribe  the  name  of  the  testator  may  be  given  by  him 
by  signs,  as  well  as  by  words.” 

That,  your  Honor,  is  a  case  which  is  cited  in  every  decent  text  book  upon 
the  subject  of  wills,  and  has  been  cited  with  approval  by  a  great  many  courts, 
and  I  don’t  believe  that  it  was  ever  cited  with  disfavor  by  any  court, — an  im¬ 
portant  case,  because  it  is  exactly  what  was  done  in  the  will  of  Ebenezer  Smith. 
Was  that  signature  affixed,  in  the  way  in  which  it  was,  with  the  testator’s  con¬ 
sent  or  acquiescence?  As  I  said  before,  and  as  this  case  which  I  have  cited 
shows,  consent  may  be  implied  from  acts  as  well  as  words.  He  was  of  sound 
mind  and  perfectly  conscious  of  what  was  done,  as  I  have  already  shown  from 
the  evidence.  He  was  doing  all  he  could  to  execute  that  will.  He  asked  each 
member  of  his  family  separately  if  they  were  satisfied,  said  it  was  all  right, 
called  attention  to  the  fact  that  it  was  necessary  to  have  three  witnesses,  called 
for  his  spectacles  with  the  will  before  him,  and  began  to  write  his  name  and 
found  difficulty  in  writing.  If  Isaac  had  stepped  up  and  said,  “Father,  shall 
I  assist  you  ?”  and  his  father  had  nodded  his  head,  this  would  have  been  equiva¬ 
lent  to  an  express  direction,  although  without  the  utterance  of  a  word.  If 
Isaac  had  stepped  up  without  saying  a  word  and  taken  hold  of  his  father’s  hand 
and  offered  to  assist  him,  and  his  father  continued  on  moving  his  hand  and 
cooperated  with  Isaac,  this  would  have  denoted  consent  and  acquiescence, 
without  the  utterance  of  a  word  by  either.  The  direct  evidence  on  this  point 
goes  certainly  to  this  extent.  Isaac  so  testifies,  and  to  his  credit  it  may  be 
said,  he  does  not  testify  to  more  than  he  remembers.  The  testimony  is  as  dis¬ 
tinct  as  can  naturally  be  expected  14  years  after  the  event.  Now,  if  your  Honor 
please,  experts  in  penmanship  have  been  produced  for  the  purpose  of  showing 
that  the  signature  was  not  written  by  Ebenezer  Smith,  but  was  written  by 
Isaac.  The  experts  could  not  tell  from  the  appearance  of  the  signature  how  it 
was  written,  and  a  good  reason  why  they  could  not  was  because  they  had  no 
experience  in  signatures  written  in  that  way.  Mr.  Sawyer  acknowledged  he 
was  not  an  expert  in  regard  to  a  signature  written  in  the  manner  in  which  we 


io6 


claim  that  was  written.  When  I  asked  him  to  write  his  name  and  then  let  me 
try  to  write  the  same  name  with  him,  he  said  he  was  not  an  expert  in  that  line. 
He  did  not  undertake  to  say  it  was  not  written  in  that  way.  The  unnatu¬ 
ralness  of  the  writing  and  the  inconsistency  between  the  different  parts,  spoken 
of  by  Mr.  Sawyer,  if  they  show  anything,  go  to  demonstrate  that  it  was  written 
in  the  manner  in  which  we  claim  it  was  written.  Mr.  Phippen  never  examined 
a  signature  of  a  man  written  when  aided  by  another.  He  says  it  was  written 
with  so  much  ink  that  he  cannot  tell  which  hand  prevailed.  He  thinks  that  if 
two  persons  should  attempt  to  write  the  same  signature  with  the  same  pen  and 
at  the  same  time,  the  result  would  be  the  same  as  appears  on  the  will.  His  idea 
that  the  signature  is  an  imitation  of  the  handwriting  of  Ebenezer  Smith  sus¬ 
tains  the  idea  that  the  power  of  Ebenezer  Smith  was  put  into  that  signature. 
The  expert  testimony,  as  far  as  it  is  of  any  value,  is  in  our  favor.  Two  wit¬ 
nesses  who  knew  Ebenezer  Smith  as  well  as  anybody,  and  were  as  well  ac¬ 
quainted  with  his  handwriting  as  anybody,  two  witnesses  called  by  the  petition¬ 
ers  themselves,  give  evidence  in  our  favor.  Mr.  Clapp,  for  25  years  the 
confidential  business  agent  of  Ebenezer  Smith,  who  saw  him  write  a  great 
many  times,  and  was  well  acquainted  with  his  handwriting,  says  that  in  his 
opinion,  that  is  the  characteristic  signature  of  Ebenezer  Smith.  And  Mr. 
Rollins,  who  was  the  counsel  of  Ebenezer  Smith  for  10  years  and  did  a  great 
deal  of  his  business  and  had  seen  him  write  a  great  many  times  and  was  well 
acquainted  with  his  handwriting,  gave  the  same  opinion  as  Mr.  Clapp,  under  oath. 

So  then  we  have  the  evidence  of  the  certificate,  of  the  decree  of  the  Judge 
who  presided  at  the  hearing  14  years  ago,  and  the  testimony  of  Isaac  cor¬ 
roborated  by  two  experts  called  by  the  petitioners  themselves,  and  by  two 
witnesses  also  called  by  the  petitioners  themselves. 

“  That  spattered  signature  needs  no  expert  to  stamp  it  as  a  forgery,”  was  the 
triumphant  declaration  of  the  counsel  for  the  petitioners  in  his  opening  argu¬ 
ment,  but  that  same  spattered  signature,  your  Honor,  is  the  lawful  signature  of 
Ebenezer  Smith  ;  all  the  experts  in  this  world  cannot  disturb  it ;  and  it  will 
stand  valid  till  the  end  of  time — in  this  world. 

So  then,  on  this  evidence  alone,  thus  far  related,  we  have  a  will  which  comes 
within  the  requirements  of  the  statute  law  of  this  Commonwealth  ; — a  will 
signed  by  Ebenezer  Smith  when  he  was  of  full  age  and  sound  mind,  and 
attested  and  subscribed  in  his  presence  by  three  competent  witnesses.  Those 
are  all  the  requirements  of  the  statute  law  of  this  Commonwealth. 

Ebenezer  Smith  knew  and  was  fully  conscious  of  what  was  transpiring.  He 
understood  that  he  was  making  a  will.  In  fact  everybody  present  so  under¬ 
stood.  That  was  the  business  in  hand  and  openly  declared  to  be  the  business 
in  hand.  Everything  was  above  board.  The  subscribing  witnesses  were  sent 
for,  and  they  understood  that  they  were  present,  for  the  purpose  of  witnessing 
the  execution  of  a  will.  It  was  not  necessary  that  Ebenezer  Smith  should  have 
said  in  so  many  words  “  this  is  my  will.”  It  is  not  a  necessary  part  to  the 
validity  of  a  will  that  it  should  be  declared  by  the  testator  to  be  his  will.  The 
witnesses  may  not  know  that  it  is  a  will  and  it  will  be  valid.  All  this  is  well 


known  law  in  this  Commonwealth  and  is  given  at  full  length  in  the  case  of 
Osborne  v.  Cook ,  n  Cushing,  page  532,  where  all  the  authorities  are  brought 
together,  the  English  authorities  and  the  American  authorities,  and  the  law 
declared  by  Judge  Thomas,  who  knew  pretty  well  about  wills, — that  the  matter 
of  declaration  is  not  an  essential  part  to  a  will.  It  is  not  necessary  that  a  man 
should  say  in  so  many  words  “this  is  my  will,”  or  in  any  words  or  by  any  act 
“  this  is  my  will.”  And  it  was  not  necessary  for  Ebenezer  Smith  to  say  to  the 
witnesses  “  I  wish  you  to  attest  this.”  All  this  is  implied  by  the  acts,  sur¬ 
roundings,  and  circumstances  of  the  time.  A  request  may  be  conveyed  by  a 
look,  even,  as  well  as  by  a  word.  Here  is  the  testimony  of  Isaac  : — 

44  Q.  Who  sent  for  Mr.  Foster?  A.  I  think  my  father  said,  4  who  is  going  to  witness  the 
will,  whom  have  you  got?  ’  and  it  didn’t  seem  to  have  occurred  to  them  till  then.  Then  tl&y 
said,  4  Mr.  Foster  keeps  the  store  round  in  the  neighborhood,  perhaps  he  will  step  in.’  Q.  State 
what  took  place  between  him  and  Mr.  Foster.  A.  He  said,  ’  I  am  very  glad  to  see  you  Mr. 
Foster;  I  am  always  glad  to  see  my  neighbors.’  Mr.  Foster  said,  4 1  am  sorry  to  see  you  so 
ill,  Mr.  Smith,  and  I  am  asked  to  come  here  to  witness  your  will,  and  I  hope  it  is  not  an  indi¬ 
cation  that  you  think  of  passing  away  !  ’  And  my  father  replied  to  him  pleasantly,  he  was  much 
obliged  to  him  for  coming.  There  was  a  little  unimportant  conversation,  not  of  much  account.” 

There  certainly  is  enough  in  that  to  indicate  a  request  to  Mr.  Foster  to  wit¬ 
ness  a  will,  and  the  other  witnesses  were  there  for  the  same  purpose.  In  the 
request  to  Mr.  Foster,  to  anyone  of  them,  is  implied  the  request  to  them  all. 

But  this  is  not  all  there  is  on  this  point.  And  before  leaving  this  branch  of 
the  subject,  I  will  refer  to  one  other  piece  of  testimony  bearing  upon  the  truth 
of  the  statements  contained  in  that  certificate  of  attestation,  also  bearing  upon 
the  various  parts  of  this  case,  testimony  which  I  regard  as  of  great  importance, 
and  of  far  greater  importance  than  all  the  testimony  of  witnesses  which  de¬ 
pends  upon  their  bare  memory.  I  mean  the  character  of  Andrix  A.  Foster, 
which  completely  refutes  the  idea  that  he  would  have  put  his  name  to  a  false 
certificate,  gives  weight  to  the  testimony  which  he  gave  here  in  court  14  years 
ago,  gives  weight  to  his  opinion  of  the  sanity  of  the  testator  at  that  time  given, 
and  blasts  the  idea  which  was  thrown  out  by  the  counsel  for  the  petitioners  in 
his  opening  argument  that  Mr.  Foster  committed  perjury  at  that  time  of 
giving  his  testimony.  And  this  is  of  tenfold  importance,  because  it  gives  ten¬ 
fold  weight  to  the  legal  presumption  that  he  at  least  duly  and  properly  attested 
the  will,  because  the  law  is  this :  If  an  attesting  witness  to  a  will  has  since 
deceased,  proof  of  his  handwriting  is  firima  facie  proof  that  he  duly  and 
properly  attested  it.  Nickerson  v.  Buck ,  12  Cushing,  332.  And  that  is  a  case 
which  it  would  be  well  to  read  in  connection  with  this  case,  as  showing  what 
request  is  necessary  on  the  part  of  the  testator  to  be  made  to  the  witnesses  to 
make  their  attestation  valid.  No  other  case  which  ever  came  into  this  court 
ever  so  clearly  demonstrated  the  importance  of  having  good  substantial  persons 
and  persons  of  high  character  and  intelligence  as  witnesses  of  a  will.  If  all 
three  of  those  witnesses  had  been  persons  of  such  high  character  as  Mr.  Foster, 
this  petition  would  never  have  been  heard  of  or  thought  of.  Take  the  will  of 
August  13,  1864,  bearing  the  names  of  William  Minot  and  Moody  Merrill  as 
witnesses,  and  the  codicil  of  September  2,  1864,  bearing  the  name  of  the  Rev. 


io8 


Rollin  H.  Neale  as  a  witness.  Nobody  of  any  sense  would  dream  of  saying, 
in  our  day,  of  a  will  bearing  the  genuine  attesting  signatures  of  those  men,  that 
the  will  was  a  forgery,  or  that  the  certificate  of  attestation  signed  by  them  was 
untrue.  If  the  genuine  signatures  of  those  men  were  on  a  will,  we  would 
know  that  it  was  not  a  forged  will.  This  illustrates  very  well  the  weight  which 
character  has  on  a  question  of  this  kind.  Andrix  A.  Foster  was  a  very  respect¬ 
able  man  of  fine  personal  appearance,  carried  intelligence  in  his  very  presence, 
a  man  who  closely  resembled  the  Rev.  Dr.  Kirk,  for  whom  he  was  often  taken, 
a  man  of  fair  education  having  taught  school  in  his  early  life,  of  good  general 
information  and  intelligence,  well  known,  having  many  friends  and  acquaint¬ 
ances.  He  was  also  a  religious  man,  actively  interested  in  the  Mount  Vernon 
church  of  which  he  was  a  member.  He  was  a  man  of  unsullied  reputation  for 
truth  and  honesty,  of  unswerving  integrity,  firm  character,  and  in  every  way 
above  reproach  or  suspicion.  Andrew  Cushing,  superintendent  of  city  Mis¬ 
sions,  a  man  of  high  character  and  intelligence  in  this  community,  a  man  be¬ 
longing  to  the  same  church  as  Mr.  Foster,  who  for  25  years  had  known  him 
intimately,  and  had  seen  him  every  day  for  the  last  15  years  of  his  life  ;  Edward 
D.  Sohier,  one  of  the  ablest  and  most  upright  men  in  Massachusetts,  who  had 
known  Mr.  Foster  for  a  long  time  before  this  will  was  offered  for  probate,  and 
who  knew  him  quite  a  while  afterwards ;  Simon  Burnett,  who  had  always 
known  Mr.  Foster  as  long  as  he  knew  anybody,  and  his  partner  in  business  for 
more  than  30  years ;  —  these  men  have  given  testimony  of  the  kind  of  a  man 
that  Andrix  A.  Foster  was,  and  if  necessary  we  could  bring  a  hundred  good 
men  to  give  testimony  to  the  same  effect.  Can  anybody  with  a  good  heart,  can 
anybody  even  with  a  black  and  wicked  heart,  knowing  the  reputation  and  char¬ 
acter  of  Andrix  A.  Foster,  look  at  that  photograph  and  say  that  the  man  who 
is  portrayed  in  that  picture  ever  signed  his  name  as  witness  to  a  forged  will,  or 
that  he  signed  a  false  certificate  in  regard  to  the  execution  of  a  will,  or  that  he 
ever  committed  perjury  or  gave  perjured  testimony  in  support  of  it?  And  I 
would  ask  anybody  to  look  at  that  man  as  he  is  portrayed  there,  a  good  like¬ 
ness,  and  answer.  The  countenance  fits  his  character  and  his  character  fits  his 
countenance,  —  a  countenance  bearing  the  stamp  and  the  superscription  of  the 
Most  High.  And  here  is  the  testimony  of  Mr.  Sohier  which  I  will  read,  be¬ 
cause  it  bears  both  upon  the  soundness  of  the  testator’s  mind,  and  upon  his 
testamentary  capacity,  and  upon  the  question  of  the  due  execution  of  the  will. 

“Mr.  Foster  testified,  (these  are  Mr.  Soliier’s  words)  that  lie  was  sent  for  to  come  in  and 
■witness  a  will,  and  on  going  into  the  room  he  spoke  to  Mr.  Smith,  to  see  whether  he  was  per¬ 
fectly  conscious,  asked  Mr.  Smith  if  he  knew  him,  Mr.  Smith  said  he  did.  ‘  you  keep  a  pro¬ 
vision  store  in  Howard  St.’  After  that  the  will  was  signed,  and  the  witnesses  signed,  and  then 
they  had  a  conversation — some  few  words  between  Mr.  Smith  and  Mr.  Foster  in  regard  to  sing¬ 
ing  either  at  Handel  and  Haydn  or  Park  St.-— but  I  cannot  now  recall  exactly  what  it  was.  Mr. 
Foster  said  he  was  satisfied  Mr.  Smith  was  conscious,  and  knew  what  the  transaction  was — 
what  he  was  performing — from  this  conversation.  I  recollect  that  of  Mr.  Foster  very  well,  for 
I  had  known  him  for  a  long  time,  and  remember  him.  He  was  a  man  highly  respected,  of  good 
reputation,  an  intelligent  man  I  thought.  I  never  heard  a  word  against  his  reputation.  I 
heard  that  he  was  a  man  quite  esteemed,  and  I  always  considered  him  such.  I  knew  him  for 
several  years  afterwards.” 


That  is- the  kind  of  a  man  Andrix  A.  Foster  was.  That  is  what  he  said  in 
court  under  oath.  That  is  what  he  put  his  name  to  ;  and  to  show  how  much 
weight  that  is  entitled  to,  let  me  read  a  few  words  of  Judge  Washington  in  the 
case  of  Stevens  v.  Vancleve ,  to  which  I  have  already  referred,  in  the  4th  of 
Washington  Circuit  Court  Reports: — “There  are  few  men  so  ignorant  as  not 
to  know  that  a  person  non  cotnfos  mentis  cannot  make  a  valid  disposition  of 
his  property  by  will,  and  that  his  signature  to  the  will  attests  its  due  execution.” 

Flow  do  the  petitioners  meet  this  testimony  in  regard  to  Mr.  Foster?  Why, 
they  show  that  he  witnessed  the  will  of  Amasa  Winchester,  which  was  opposed 
in  some  way  but  sustained  and  admitted  to  probate,  and  they  try  to  show  that 
he  said  that  he  had  witnessed  some  will  or  other  besides  that  of  Amasa  Win¬ 
chester  and  had  his  doubts  afterwards  whether  or  not  the  man  was  conscious. 
It  is  not  shown  that  this  was  said  of  the  will  of  Ebenezer  Smith,  but  if  it  had 
been,  it  would  not  be  evidence,  and  for  this,  your  Honor,  I  refer  to  the  case  of 
Baxter  v.  Abbott ,  7  Gray,  71,  which,  being  very  short,  I  will  read.  I  ask  your 
Honor  to  look  at  that  decision.  I  have  it  written  here  among  my  papers  some¬ 
where,  but  I  don’t  know  where  I  have  laid  it.  I  would  like  to  have  your  Honor 
look  at  it,  not  because  it  is  necessary,  but  to  show  how  incompetent  any  such 
evidence  would  be  even  if  it  had  been  uttered  in  regard  to  the  will  of  Ebenezer 
Smith,  and  could  be  fixed  upon  his  will.  There  is  also  the  further  testimony 
offered  by  the  petitioners  that  Mr.  Foster  when  he  left  the  room  of  Amasa 
Winchester,  after  having  witnessed  that  will,  said  “  the  deed  is  done,  the  will 
is  made  and  signed  and  witnessed  ;  ” — no  doubt  calling  to  the  fertile  and  frenzy¬ 
rolling  mind  of  the  counsel  for  the  petitioners  the  words  of  Daniel  Webster  at 
the  Knapp  trial: — “The  deed  is  done.  He  has  done  the  murder.  No  eye 
has  seen  him  ;  no  ear  has  heard  him.  The  secret  is  his  own  and  it  is  safe  ;  ” — 
or  perhaps  suggesting  to  his  mind  the  words  of  Macbeth,  blood  stained  and 
guilty,  coming  from  the  chamber  of  the  murdered  Duncan,  “  I  have  done  the 
deed.”  This  perversion  deserves  to  go  into  the  same  category  with  that  other 
infamous  perversion, — the  perversion  of  the  words  of  old  Ebenezer  Smith 
written  in  April,  1862,  with  which  he  was  repelling  what  was  to  him  a  bore  : — 
“  I  must  fight  or  be  robbed  of  the  last  pound  of  flesh  and  last  dollar.” 

Here,  then,  we  have  a  will  duly  executed  by  a  man  of  sound  mind.  This  is 
all  that  is  necessary  to  show  to  entitle  the  will  to  probate  if  offered  de  novo. 
From  the  due  execution  of  a  will  made  by  a  man  of  sound  mind,  the  legal  pre¬ 
sumption  arises  that  he  understood  the  contents,  in  the  same  way  that  it  arises 
from  the  due  execution  of  a  deed  by  a  man  of  sound  mind.  In  the  case  of  a 
will,  however,  this  presumption  may  be  rebutted,  but  it  can  be  rebutted  only 
by  evidence  ;  and  what  evidence  is  there,  I  ask,  to  rebut  that  presumption  and 
to  show  that  Ebenezer  Smith  did  not  understand  the  contents  ?  Now  there  is 
no  evidence  whatever,  except  that  which  has  already  been  overthrown  and  de¬ 
monstrated  to  be  worthless,  by  which  they  sought  to  impeach  Mr.  Smith’s  tes¬ 
tamentary  capacity  and  the  due  execution  of  the  will.  So  then  the  legal  pre¬ 
sumption  which  is  in  our  Evar  stands  unrebutted.  On  the  other  hand,  we  have 
gone  further  than  was  necessary,  without  resting  upon  this  presumption  alone, 

15 


no 


and  have  shown  affirmatively  that  the  presumption  is  correct.  In  truth  and 
fact  he  did  understand  the  contents,  and  we  have  shown  it.  If  before  the  will 
was  drawn  Ebenezer  Smith  gave  instructions  as  to  the  terms  of  the  will,  or  if 
the  terms  of  the  will  were  proposed  to  and  understood  and  adopted  by  him,  and 
afterwards  the  will  was  drawn  embodying  those  terms,  then  in  the  contempla¬ 
tion  of  law  he  understood  the  contents  of  the  will,  whether,  after  it  was  drawn, 
it  was  or  was  not  read  to  or  by  him.  So  if  a  man  directs  a  will  to  be  made  in 
a  certain  way,  or  if  it  is  suggested  to  him  that  a  will  be  made  for  him  in  a 
certain  way,  and  he  understands  and  adopts  the  suggestion,  and  afterwards  the 
will  containing  some  variations  from  the  way  directed  or  adopted  by  him,  is 
brought  to  him  and  read  to  or  by  him  and  he  understandingly  adopts  the  will, 
it  satisfies  the  law.  This  was  determined  in  the  case  of  Hess's  Appeal ,  43 
Penn.  State,  73.  Indeed,  if  without  any  suggestion  made  or  adopted  by  the 
testator,  a  will  already  made  is  brought  to  him  and  read  to  or  by  him,  and  he 
understandingly  adopts  it,  this  satisfies  the  law.  And  that  was  held  in  the  case 
of  Constable  &  Bailey  v.  Trcfnell  &  Mason,  4  Haggard’s  Eccl.  Reports,  477. 
It  is  not  necessary  to  the  validity  of  a  will  that  the  idea  of  the  will  should  have 
originated  with  Ebenezer  Smith.  And  in  that  case  which  I  have  cited  Sir  John 
Nicholl  says  : — 

“It  is  no  part  of  the  testamentary  law  of  this  country  that  the  making  of  a  will  must  origi¬ 
nate  with  a  testator,  nor  is  it  required  that  proof  should  be  given  of  the  commencement  of  such 
a  transaction;  provided ,  I  repeat,  it  be  proved  that  the  deceased  completely  understood, 
adopted  and  sanctioned  the  disposition  proposed  to  him  and  that  the  instrument  itself  em¬ 
bodied  such  a  disposition.’’ 

Also  the  case  of  Jones  v.  Jones,  14  B.  Monroe  (Ky.,)  464; — an  exception 
to  this  instruction  given  to  the  jury  was  sustained  :  The  instruction  was  that 
the  jury  ought  to  find  against  the  will  unless  it  was  drawn  up  by  the  testator’s 
request  and  desire.  Exception  to  this  was  sustained,  and  the  Court  say  : — 

“  A  testator  might  adopt  a  paper  drawn  up  by  or  at  the  instance  of  the  parties  interested  in 
its  provisions,  and  if  he  did  it  understandingly,  the  mere  fact  that  it  had  not  been  drawn  up  at 
his  instance  or  request  would  not  of  itself  render  the  will  invalid.” 

The  idea  of  the  will,  as  I  understand  the  testimony,  did  not  originate  with 
Ebenezer  Smith.  He  had  already  made  a  testamentary  disposition  of  his  prop¬ 
erty  which  was  then  existing  giving  his  furniture  and  one-third  of  his  estate  to 
his  wife,  one-third  of  the  balance  to  his  daughter  Sarah  W.  Thorndike,  $1,325 
to  relatives  who  were  not  heirs-at-law,  $1,000  to  the  Burtons,  and  the  remain¬ 
der  to  his  son  Isaac  and  his  daughter  Eliza  W.,  in  the  proportion  of  two-thirds 
to  Isaac  and  one-third  to  Eliza.  The  daughter  Eliza  who,  with  her  insane  love 
of  quarrel,  had  been  the  cause  of  a  great  deal  of  trouble,  threatened  to  destroy 
the  family  peace  if  the  then-existing  testamentary  disposition  remained  The 
testator’s  two  other  children  and  his  wife,  tired  of  the  dissension  with  which 
the  family  had  been  rent  in  previous  years,  desired  peace.  And  for  the  pur¬ 
pose  of  pacifying  Eliza  it  was  proposed  to  Mr.  Smith,  substantially,  that  he 
make  a  new  will  giving  the  widow  the  same  as  before  and  placing  the  three 
children  on  an  equality.  Mr.  Smith  was  at  first  reluctant  to  do  this,  because  it 
would  prejudice  his  son  Isaac,  but  that  very  son  was  present  acquiescing  in  the 


Ill 


change  to  his  own  prejudice,  and  so  the  testator  seeing  that  his  son  was 
satisfied  to  make  a  sacrifice,  consented  to  the  making  of  a  new  will.  The  will 
was  drawn,  substantially  in  accordance  with  the  change  proposed,  and  was 
adopted  by  Mr.  Smith.  The  testator’s  brother,  sister,  nephew  and  nieces,  to 
whom  in  the  prior  will  of  August  13,  1864,  he  had  given  small  legacies, 
amounting  to  $1 ,325  in  all,  were  left  out  of  the  new  will;  and  they,  if  any¬ 
body,  are  the  only  persons  in  this  world  who  can,  with  any  justice  whatever  on 
their  side,  complain  of  the  new  wrill ;  but  he  had  himself  cut  them  down  con¬ 
siderably  in  the  will  of  August  13th,  1864,  from  the  amounts  which  he  had 
given  them  in  his  will  of  May  2,  1859.  The  will  was  drawn  embodying  these 
■directions  of  Mr.  Smith,  or  at  least  these  suggestions  made  to  Mr.  Smith  and 
adopted  by  Mr.  Smith.  Isaac  took  the  new  will  to  his  father,  and  read  it  over 
to  him  carefully.  His  father  was  perfectly  conscious,  clear  in  his  mind  and 
able  to  comprehend  the  terms  of  the  will,  and  especially  was  he  so  able,  since 
it  so  nearly  corresponded  with  the  terms  of  the  disposition  which  he  had  there¬ 
tofore  recently  made.  Mr.  Smith  understood  it ;  he  knew  also  that  it  was  pre¬ 
judicial  principally  to  that  son  who  was  reading  it  to  him  ;  he  knew  that  it  was 
made  in  the  interest  of  family  peace  ;  and  when  afterwards  it  was  brought  in 
for  him  to  execute,  and  he  learned  from  his  wife  and  from  each  of  his  children 
that  they  were  satisfied,  he  was  satisfied  and  adopted  the  will.  'The  statement 
of  the  nurse  that  she  was  in  the  room  all  the  time  and  does  not  remember  the 
conversation  of  Isaac  with  his  father,  and  does  not  remember  the  reading  of  the 
will,  is  mere  negative  evidence  from  a  discredited  witness  who  had  no  interest 
in  the  matter,  and  there  was  no  reason  why  she  should  remember  it.  She  was 
the  night  nurse  and  might  have  been  asleep,  and  very  probably  was  out  of  the 
room. 

Mr.  Chandler : — She  was  the  day  nurse,  Mr.  Drury.  Mr.  Drury : — Well, 
a  person  cannot  live  day  and  night  without  sleeping.  I  say  that  is  impossible, 
for  nurses  or  for  anybody  else.  No  human  being  who  ever  lived  could  live 
without  sleeping  either  day  or  night.  She  was  the  night  nurse.  If  the  evidence 
on  this  point  were  evenly  balanced  so  as  to  leave  a  doubt  whether  or  not  the 
will  was  read  to  or  by  him,  or  its  contents  understood  by  him,  we  are  entitled 
to  the  benefit  of  the  doubt,  because  the  presumption  is  that  it  was  either  read 
to  him  or  that  he  understood  the  contents  in  some  way. 

So  then,  we  have  the  legal  presumption  unrebutted,  and  besides  this,  the 
uncontradicted  evidence  of  Isaac  that  he  talked  the  terms  over  with  his  father 
and  read  the  will  to  him,  strengthened  by  the  absence  of  any  possible  or  sanely 
conceivable  motive  to  impose  upon  his  father  to  give  him  $15,000  less  than  the 
prior  will  gave  him,  and  the  overwhelming  testimony  that  Mr.  Smith  adopted 
it  clearly  in  the  presence  of  his  wife  and  children.  Is  it  to  be  supposed  that 
all  the  powers  of  darkness  combined  can  disturb  a  will  like  that  after  it  has 
stood  for  14  years?  What  sublime  stupidity  a  man  must  have  to  think  it 
possible  ! 

We  now  have  all  the  elements  of  a  valid  will  affirmatively  proved.  We  have 
proved  some  things  not  necessary.  We  have  a  will  duly  executed  by  a  person 


1 12 


of  sound  mind  with  an  understanding  of  its  contents.  And  the  first  seven  alle¬ 
gations  in  the  petition  are  now  disposed  of,  and  we  come  to  the  eighth,  which 
is  this  : — “  That  the  said  instrument  and  the  supposed  signature  thereto  of  the 
said  Ebenezer  Smith  were  obtained  and  procured  by  collusion,  by  fraud,  by 
undue  influence  and  by  force.” 

Was  the  will  procured  by  undue  influence?  The  allegation  or  claim  that  it 
was,  it  would  be  incumbent  upon  the  petitioners  to  prove  by  a  preponderance  of 
evidence,  if  the  will  were  now  offered  for  probate  by  the  respondents  for  the 
first  time.  The  presumption  of  law  here  is  that  it  was  not  so  procured.  The 
burden  is  upon  him  who  asserts  undue  influence.  No  evidence  whatever  has 
been  produced  for  the  purpose  of  showing,  or  tending  to  show,  that  the  will 
was  pi'ocured  by  undue  influence.  The  theory  of  the  petitioners  has  been,  and 
is,  that  Ebenezer  Smith  was  not  susceptible  of  influence,  that  he  had  no  mind 
which  could  be  influenced,  that  he  had  no  testamentary  power,  that  he  was  not 
conscious,  that  he  had  no  part  in  the  will  any  more  than  if  he  had  been  dead, 
that  the  signature  was  not  his  and  was  not  made  by  his  direction,  and  that,  al¬ 
though  there  was  breath  in  his  body,  and  although  he  was  not  physically  dead, 
he  was,  as  far  as  that  will  is  concerned,  dead  and  beyond  the  power  of  influence, 
due  or  undue.  It  is  therefore  unnecessary  to  consider  the  question  of  undue 
influence,  and  yet.  inasmuch,  as  the  whole  theory  of  the  petitioners  in  regard 
to  the  questions  which  I  have  thus  far  considered  is  completely  overthrown,  and 
inasmuch  as  the  allegation  of  undue  influence  is  made,  although  not  supported 
by  an  iota  of  evidence,  I  will  consider  that  question  as  if  the  burden  were  upon 
us.  I  voluntarily  assume  the  burden  of  that. 

If  the  counsel  for  the  petitioners  were  to  state  the  case  of  his  clients  in  the 
strongest  way  in  which  it  could  be  stated,  I  think  he  would  abandon  the  first 
seven  allegations  in  the  petition  altogether,  and  put  his  whole  power  into  the 
eighth  allegation  alone.  He  would  admit  that  Ebenezer  Smith  had  sufficient 
testamentary  capacity  to  make  the  will,  and  that  the  will  was  duly  executed  by 
the  testator  with  a  knowledge  of  its  contents.  He  would  if  he  had  the  instincts 
of  a  gentleman  and  a  decent  regard  for  his  professional  honor  and  character, 
honestly  acting  for  the  true  interests  of  his  clients,  and  spurning  to  gratify  their 
malignity;  —  he  would,  I  say,  offer  an  apology  for,  and  would  abandon,  his 
statements  concerning  conspiracy,  forgery,  intimidation,  force  and  fraud,  and 
his  numerous  perversions  of  fact,  and  his  talk  about  the  cell,  rinsing  the  cup 
for  fear  of  poison,  primogeniture,  threats  of  guardianship,  being  robbed  of  the 
last  pound  of  flesh  and  last  dollar,  manoeuvreing  so  as  to  cut  oft'  the  Burton 
branch  from  their  inheritance,  imprisonment,  burning  of  papers,  dosing  with 
whiskey,  and  all  that  kind  of  talk,  which  only  serves  to  weaken  his  case.  He 
would  try  to  reconcile  his  case  with  honesty  of  purpose  and  intent  on  the  part  of 
the  wife  and  children  of  Ebenezer  Smith,  because  a  court  naturally  and  instinct¬ 
ively  revolts  from  the  idea  of  crime  and  wickedness.  All  these  charges  of 
crime  made  by  the  petitioners,  all  this  talk  of  wrong  doing  uttered  by  and  for 
them,  are  only  signs  of  weakness  and  signals  of  distress,  and  throw  suspicion 
upon  their  case  ;  for  what  court  would  not  rather  believe  all  the  charges  false 


”3 


than  to  believe  them  true,  and  reconcile  all  our  acts  with  honesty  than  with 
guilt?  If  the  counsel  for  the  petitioners  were  to  state  the  case  of  his  clients  in 
the  strongest  possible  way,  and  in  a  way  to  commend  their  case  to  the  greatest 
possible  favor  from  a  court  of  justice,  he  would  say,  what  has  been  conclusively 
proved,  that  there  was  no  fraudulent  influence,  no  force,  no  collusion  in  pro¬ 
curing  that  will  from  Ebenezer  Smith  ;  for  nobody  of  any  sense,  nobody  who 
is  not  a  knave,  can  now  have  the  idea  that  any  of  the  family  of  Ebenezer  Smith 
was  acting  with  a  fraudulent  intent  and  purpose,  that  any  of  them  had  anything 
but  an  honest  intent  and  purpose.  All  this  may  have  been  true,  and  yet  there 
may  have  been  undue  influence  of  some  kind.  Undue  influence  may  have  been 
consistent  with  honesty.  Ebenezer  Smith  was  in  feeble  health,  gradually  but 
surely  approaching  dissolution,  and  his  life  was  fast  flickering  out.  He  still  had 
remarkable  powers  of  memory,  reason  and  mind  for  a  man  in  his  physical  con¬ 
dition.  He  remembered  his  past  life  and  related  a  great  deal  of  it  either  in 
soliloquy  or  to  his  nurse,  he  reasoned  with  his  physicians,  he  remembered  and 
recognized  the  members  of  his  family  and  his  acquaintances,  he  had  a  care 
about  his  property,  he  had  what  the  law  recognizes  as  a  sound  and  disposing 
mind  and  memory,  and  had  a  sufficiently  clear  idea  of  the  disposition  which 
he  wished  to  be  made  of  his  property.  But  he  was  in  a  condition  in  which  he 
was  much  more  susceptible  of  influence  than  when  he  was  in  health,  the  in¬ 
fluence  of  kindness  and  persuasion,  the  claims  of  kindred  and  benevolence,  the 
influence  arising  from  sense  of  obligation  and  good  will  and  affection.  He  was 
in  that  condition  in  which  the  law  is  inclined  to  treat  him  with  tenderness  and 
to  throw  around  him  every  protection  from  undue  influence  of  every  kind,  so 
that  he  might  have  the  utmost  freedom  of  will.  Now  was  there  the  honest 
overcoming  of  a  disposing  but  weak  mind  by  a  mind  or  by  minds  powerful  and 
strong,  whereby  that  instrument  became,  not  the  will  of  Ebenezer  Smith,  but 
the  will  of  those  who  were  honestly  acting  upon  him  ?  That  is  the  strongest 
way  to  put  the  case  of  the  petitioners,  I  believe,  or  would  be,  if  the  will  were 
now  offered  for  probate  for  the  first  time,  and  were  not  fixed  by  the  stability  of 
14  years.  All  this  is  perfectly  consistent  with  honesty  of  purpose  and  intent, 
and  the  sneer  of  a  sneak  cannot  make  it  otherwise.  If  the  counsel  for  the 
petitioners  were  to  take  some  such  ground  as  this,  he  would  then  be  in  a  con¬ 
dition  to  use  with  great  effect  one  of  the  ideas  advanced  in  his  opening  argument, 
if  that  idea  were  based  upon  fact,  which  it  is  not.  The  idea  to  which  I  refer  is 
this:  —  “The  will  which  we  now  dispute  is  of  itself  conclusive  proof  that  it 
does  not  speak  the  views  of  justice,  the  benevolence,  the  affections  or  the  in¬ 
clinations  of  this  fond  grandfather.  On  the  contrary,  it  is  so  repugnant  to,  so 
unmistakably  in  conflict  with,  the  life-long  sentiments  entertained  by  Mr.  Smith, 
in  that  it  cuts  off  these  pet  grandsons  with  a  paltry  $500  out  of  about  $500,000, 
that  we  might  confidently  rest  our  case  upon  the  proof  of  this  alone.”  But 
unfortunately  for  the  petitioners  there  is  a  short  and  complete  answer  to  all  this, 
as  well  as  to  the  idea  of  fraudulent  influence,  coercion  and  fraud,  and  that  an¬ 
swer  is  this  :  If  that  will  had  never  been  made,  these  pet  grandsons  would 
never  have  received  more  than  the  same  paltry  $500  each,  and  each  of  the  persons 


II4 


upon  whom  it  is  sought  to  fix  undue  influence,  Isaac,  Mrs.  Ebenezer  Smith  and 
Sarah,  would  have  received  more,  and  the  person  upon  whom  it  is  principally 
charged  would  have  received  upwards  of  $15,000  more.  We  can  conceive  a 
man  doing  something  bad  for  the  sake  of  gaining  something ;  we  can  even  con¬ 
ceive  that  a  man  would  commit  forgery  for  the  purpose  of  gaining  $15,000. 
You  can  find  a  motive  there.  But  when  we  are  told  that  a  man  commits  forgery 
for  the  sake  of  cutting  himself  off  of  $15,000,  we  say  we  do  not  believe  it. 
Why,  that  illustration  which  Judge  Hoar  used  would  be  very  pertinent  here. 
I  think  that  was  suggested  by  an  anecdote,  which  I  have  heard  elsewhere,  of  a 
priest  who  was  trying  to  make  a  boy  comprehend  what  a  miracle  was.  The 
priest  said  to  the  boy  “  Suppose  that  somebody  should  tell  you  that  last  night 
at  midnight  he  saw  the  sun  directly  over  his  head?”  “Why,  I  would  say  he 
lied,”  said  the  boy.  The  priest  said  “  But  suppose  I  told  you  so?”  “  I  should 
say  you  were  drunk,”  was  the  boy’s  reply.  I  dont  care  who  says  it  of  any 
man  who  ever  lived,  I  don’t  believe  that  there  was  ever  a  man  lived,  —  it  would 
be  a  miracle,  may  it  please  your  Honor,  —  who  would  commit  the  crime  of 
forgery  for  the  sake  of  taking  $15,000  out  of  his  own  pocket  and  throwing  it 
away  ;  and  if  anybody  should  tell  me  that  a  man  did  that,  I  would  say  that  the 
man  who  said  it  was  either  a  liar  or  was  drunk  at  the  time  he  conceived  that  idea. 

Was  there  then  this  undue  influence,  this  honest  overcoming  of  a  weak  mind 
by  a  strong  and  powerful  mind,  so  that  that  will  was  the  will  of  those  persons 
who  were  acting  upon  Ebenezer  Smith  ?  Did  not  Ebenezer  Smith  have  perfect 
freedom?  It  would  not  have  been  a  great  restraint  upon  him  for  that  son  to  have 
gone  and  said  to  him  “  Father,  I  want  you  to  cut  me  down  in  your  will,  I  don’t 
want  you  to  give  me  so  much  as  you  have  given  me,  my  sister  is  making  a  fuss, 
she  threatens  that  she  is  going  to  destroy  the  peace  of  the  family  after  you  are 
dead  ;  now  I  think  the  best  way  to  do  will  be  to  make  us  equal.”  Suppose  he 
fell  in  with  it,  do  you  suppose  that  would  be  any  sign  of  undue  influence?  And 
that  is  all  he  was  asked  to  do, — he  was  asked  to  diminish  Isaac’s  share  and  in¬ 
crease  Eliza’s, — and  if  the  undue  influence  was  exercised  upon  anybody  it  was 
upon  Isaac.  His  mother  and  sisters  wanted  him  to  give  way  for  the  sake  of 
peace,  and  he  consented  to  do  it. 

Now  this  argument  is  unanswerable,  unless  the  prior  will  of  August  13th  can 
be  successfully  attacked.  Has  there  been  one  particle  of  evidence  in  the  course 
of  this  trial,  your  Honor,  to  impeach  that  will  of  August  13,  1864?  Did  he  not 
understand  the  contents  of  that  will?  Did  he  not  sign  that  will?  Was  not  that 
will  witnessed ?  Was  he  not  of  sound  mind  when  he  made  that?  Was  there 
any  undue  influence  upon  him  when  he  made  that?  What  evidence  of  it?  By 
whom  was  this  undue  influence  exercised  ?  It  could  have  been  by  no  one  but 
Isaac.  It  was  not  exercised  by  Mrs.  Ebenezer  Smith,  because  when  she  found 
out  the  contents  of  it  she  was  not  satisfied,  it  was  not  in  accordance  with  her 
wish.  Eliza  W.  did  not  exercise  any  undue  influence,  although  she  had  as 
much  influence  over  her  father  as  anybody.  She  exercised  no  undue  influence, 
because  the  giving  to  her  of  only  one-quarter  of  the  residue  and  giving  to  Isaac 
one-half,  was  not  in  accordance  with  her  wishes.  Sarah  did  not  exercise  any 


II5 


undue  influence  upon  him,  because  it  was  not  according  to  her  wishes,  and  she 
afterwards  procured  a  codicil  which  was  in  accordance  with  her  wishes,  giving 
her  one-third  of  the  balance  left  after  setting  aside  the  portion  to  the  widow. 
Then  there  is  no  one  left  but  Isaac.  Who  else  could  have  influenced  him.  It 
was  not  the  Burtons  who  influenced  him,  because  they  got  only  $500  each,  and 
it  was  not  in  accordance  with  their  wishes.  Nobody  interested  in  that  will  of 
August  13th,  could  have  exercised  any  undue  influence  upon  him,  except  Isaac. 
And  we  have  to  adopt  the  absurd  theory  that  Isaac,  living  250  miles  away  in 
New  York  City,  exercised  undue  influence  upon  Ebenezer  Smith  to  the  preju¬ 
dice  of  his  wife  and  his  children  who  were  right  here  at  home  with  him,  and 
also  to  the  prejudice  of  his  affectionate  grandchildren  whom  he  was  visiting 
every  day,  according  to  their  story,  and  who  must  have  had  as  much  influence 
as  anybody  upon  him,  if  he  had  the  affection  towards  them  to  which  their 
father  has  testified  so  strongly.  Isaac,  250  miles  away,  exercised  that  influence 
upon  Ebenezer  Smith  against  all  the  influence  of  his  grandchildren,  and  his 
grandchildren’s  father,  and  the  grandchildren’s  father’s  fourth  wife,  and  the  tes¬ 
tator’s  own  wife,  and  the  testator’s  own  two  daughters  ! 

Now  what  evidence  has  there  been  in  this  case  of  any  undue  influence  in  re¬ 
gard  to  that  will?  Not  a  particle.  The  silly  stuff  of  Eliza  W.  about  the 
guardianship  may,  perhaps,  be  considered  as  evidence  of  undue  influence,  if 
your  Honor  gives  a  feather’s  weight  to  any  testimony  which  has  come  out  of 
the  mouth  of  that  witness.  Isaac  was  not  here  at  the  time  she  speaks  of, — had 
not  been  here  in  August. 

Against  all  this,  if  your  Honor  please,  we  have  the  acts  of  Ebenezer  Smith 
himself  shown  by  his  letter  written  to  his  son,  sending  to  his  son  a  long  draft  in 
his  own  handwriting,  which  must  have  taken  him  a  da)'  or  two  to  write,  of  the 
will  of  1859,  and  fhe  codicil  thereto,  and  a  draft  of  the  proposed  changes;  and 
now  that  eleven  sheets  of  closely  written  writing, — he  sends  that  to  his  son 
Isaac,  and  at  the  same  time  sends  him  a  proposed.  draft  of  the  will  of  August 
1864,  and  that  draft  is  as  follows  : — 

“  I  give  to  my  brother  Samuel  Smith  and  to  my  sister  Sally  Smith  of  Peter¬ 
borough,  New  Hampshire,  $200  each.  Second.  I  give  to  each  of  the  five 
children  of  my  said  brother  $50  each,  and  $75  to  the  widow  and  children  of 
my  deceased  nephew  Eli  Smith.  Third.  I  give  to  Noah,  John  and  Elmira 
Smith  $400  in  trust  for  my  four  neices,  namely,  Asineth,  Eliza,  Elmira  and 
Sarah  Ann.” — You  notice  he  made  a  change  there  from  that  proposition.  In¬ 
stead  of  giving  them  $400  in  trust,  he  gives  them  in  the  will  outright  $75  each. 
“  Fourth.  I  give  to  each  of  the  three  children  of  my  deceased  sister  Phoebe 
Seaver  $100  each,  namely,  to  Isaac  T.  Smith  of  New  York  in  trust  for  Zacha- 
riah  Seaver  $100  and  to  Ebenezer  Seaver  of  Boston  $100,  and  to  said  Ebenezer 
Seaver  $100  in  trust  for  Charlotte  Seaver.  Fifth.  I  give  to  my  wife” — (he 
doesn’t  say  how  much.)  “  Sixth.  I  give  to  Ebenezer,  if  living,  $100.” 
“  George  Alexander,  dead,” — that  is  the  seventh  clause.  “  Eighth.  Right. 
Interest  Burton  boys,  Harriet.  Ninth.  I  give  to  my  son  Isaac  half  residue” — 
and  a  word  I  cannot  make  out.  “  Tenth.  I  give  and  devise  two  undivided 


quarters  to  Eliza  and  Sarah.  Elevetith.  Question.  Twelfth,  Right. 
Thirteenth.  Question.  Fourteenth.  Isaac  and  Eliza.”  That  clause  fourteen 
is  in  regard  to  the  debts  of  Isaac  and  Eliza.  “  Fifteenth.  Right.  Sixteenth. 
I  appoint  Isaac  T.  Smith  to  be  my  legal  representative  to  decide  upon  all  mat¬ 
ters  overlooked,  doubtful  or  not  clearly  expressed  in  will,  or  otherwise,  with 
full  power  to  decide.”  There  he  proposed  in  that  will  to  make  Isaac  T.  Smith 
his  sole  executor,  and  to  give  him  full  power  to  do  everything  that  was  not 
fully  expressed  in  that  will.  Now  in  fact  when  he  made  the  will,  he  made 
Isaac,  Edward  Bangs  and  William  Minot  executors  and  trustees  with  no  such 
power. 

The  eighth  clause  in  the  will  of  1S59  which  Ebenezer  Smith  marks  “  Right” 
in  his  own  draft  for  his  own  proposed  new  will,  is  as  follows:  “Eighth. 
When  my  grandsons  Hazen  J.  Burton,  Jr.,  and  George  S.  Burton,  children  of 
my  deceased  daughter  Harriet,  shall  severally  attain  the  age  of  21  years,  I  give 
to  each  of  them  on  his  attaining  that  age  $500.” 

And  the  letter  written  by  Ebenezer  Smith  on  one  leaf  of  the  long  copy, 
which  he  himself  wrote,  of  the  will  and  codicil  of  1859  as  follows : 

“Boston,  July  25,  1864. 

Dear  Isaac: — I  cannot  write  any  more  now,  I  am  very  tired,  but  simply  to  say  that  what¬ 
ever  suggestions  you  have  to  make  will  be  thankfully  received,  and  let  me  have  them  immedi¬ 
ately,  that  I  may  close  the  will  without  delay.  Yours  affectionately.  Father.” 

There  we  find  Ebenezer  Smith  writing  to  his  son  Isaac,  250  miles  away, 
urging  upon  him  to  make  suggestions  immediately,  telling  him  that  any  sug¬ 
gestions  that  he  may  make  will  be  thankfully  received.  Well,  now  let  us  see. 
Is  there  any  sign  here  that  any  suggestions  were  made  to  the  favor  of  Isaac? 
This  gives  him  one-half  of  the  residue.  These  are  the  suggestions  which  went 
with  this,  and  in  this  he  appoints  Isaac  his  sole  executor  and  legal  representa¬ 
tive  to  decide  upon  all  matters  overlooked  and  made  doubtful.  In  fact,  when 
he  makes  the  will,  he  adds  two  other  men  to  the  executors.  Now  is  there  any 
evidence  from  that  of  any  undue  influence  on  the  part  of  Isaac?  Is  it  not  on 
the  contrary,  evidence  that  he  was  soliciting  Isaac  to  make  suggestions  to  him 
in  regard  to  the  making  of  his  will?  And  we  find  afterwards  among  the 
papers  of  Ebenezer  Smith,  in  his  own  handwriting,  a  full  draft  of  the  pro¬ 
posed  will,  wherein  he  makes  this  distribution  which  is  proposed  here,  and 
gives  the  Burton  boys  $500  each.  There  was  a  great  deal  of  work  in  regard 
to  that  will  which  was  done  by  Ebenezer  Smith, — copying  of  that  long  will 
and  codicil  of  1S59,  writing  the  will  of  August,  1864,  in  his  own  handwriting, 
also  this  draft  which  he  sent  to  Isaac.  Then  another  thing ; — the  names  of  the 
witnesses  upon  that  will  of  August,  13,  1864,  William  Minot,  Moody  Merrill 
and  Luther  L.  White,  ought  to  be  conclusive  evidence  of  its  due  execution,  and 
they  are  men  who  would  not  knowingly  have  been  party  to  the  making  of  a 
will  brought  about  by  any  undue  influence.  It  was  drawn  by  William  M  not. 
Isaac  had  nothing  to  do  with  it.  It  was  drawn  in  the  office  of  William  Minot 
in  the  handwriting  of  Moody  Merrill,  drawn  by  this  same  William  Minot  who 
drew  his  will  and  codicil  of  1859,  and  who  was  his  regular  attorney  in  all 
matters  in  regard  to  his  wills. 


Well,  now  may  it  please  your  Honor,  what  is  the  best  evidence  of  what  a 
man’s  free  will  is?  The  best  evidence  of  a  man’s  testamentary  declarations 
are  not  the  words  which  are  floating  in  the  air  for  14  years  and  remembered 
by  an  interested  witness,  but  the  acts  of  the  testator  himself  which  he  has  put 
down  in  legal  form  and  in  solemn  form  in  accordance  with  the  law  ;  and  what 
do  we  find  that  his  previous  testamentary  declarations  were?  Wherein  do  we 
find,  that  in  that  will  of  October  5,  1864,  there  is  evidence  that  Ebenezer 
Smith’s  mind,  as  it  had  been  made  up  for  years,  as  it  had  been  declared  by 
himself  privately,  was  warped  and  twisted  in  any  direction,  or  that  he  didn’t 
have  absolute  freedom  of  will?  Wherein  does  that  will  differ  from  the  will  of 
1859?  There  in  those  wills  and  codicils  as  the  best  evidence  of  his  previous 
testamentary  declarations.  In  a  great  many  cases  in  the  English  Reports,  the 
English  Ecclesiastical  Reports,  you  will  find  this  matter  brought  up :  What 
were  the  previous  wills?  Wherein  does  this  differ  from  his  previous  testament¬ 
ary  declarations?  This  has  usually  been  the  inquiry  where  undue  influence,  or 
fraud,  or  anything  of  that  sort  has  been  alleged,  and  that  has  always  been  re¬ 
garded  as  evidence  of  the  greatest  weight,  if  the  Judges  see  a  uniformity  in  all 
the  testamentary  dispositions  of  a  man  taken  together,  or  some  change  which 
can  be  reasonably  explained  when  it  is  compared  with  the  previous  testa¬ 
mentary  declarations.  Now  here  we  have  the  will  of  October  5,  1864.  It  is 
almost  exactly  like  the  will  of  1859  except  in  one  or  two  particulars, — it  leaves 
out  the  relatives  outside  the  family,  and  gives  to  the  wife  absolutely  one-third 
instead  of  the  life  income  of  one-third,  and  says  nothing  about  the  debts  of  Eliza 
and  Isaac,  Those  are  all  the  changes  from  the  will  of  1859.  That  man  also 
made  a  declaration  on  the  16th  day  of  May,  1859,  and  that  declaration  shows 
what  a  fond  old  grandfather  Ebenezer  Smith  was,  because,  his  son  Alexander 
having  died  after  May  2,  1859,  in  order  to  show  the  love  which  he  had  for 
bis  pet  grandsons,  the  children  of  his  son  George  Alexander,  gave  them  $5 
each,  and  did  not  take  the  trouble  to  find  out  whether  George  Alexander  had 
any  children  or  not, — didn’t  know  whether  he  had  any  or  not.  That  shows  the 
affection  of  the  man  for  his  grandchildren.  It  shows  what  Chancellor  Kent 
says  in  that  case  of  Van  Alst  v.  Hunter ,  to  which  I  have  already  referred, 
that  the  affections  of  an  old  man  grow  dim  as  the  generations  from  him  recede. 
They  were  two  generations  off,  he  was  an  old  man,  locked  up  in  himself, 
secret,  and  nobodv  could  find  out  from  mere  talk  with  him  what  his  will  was. 

Even  if  Isaac  did  exercise  undue  influence  in  the  will  of  August  13,  1S64, 
what  was  the  effect  of  that  undue  influence  ?  Not  to  prejudice  the  Burtons. 
They  had  no  reason  to  complain.  Well,  suppose  they  go  back  to  the  will  of 
1859,  bow  can  they  attack  that?  How  can  they  account  for  that  in  1S59, 
wherein  he  gave  them  only  $500  each  ?  What  answer  is  it  possible  for  any 
man  to  make  to  this  argument?  That  statement  of  the  wills  which  I  presented 
to  your  Honor  in  my  opening  argument  (see  statement  on  pages  18  and  19)  is 
perfectly  unanswerable  :  it  cannot  be  answered..  When  an  able  lawyer  like 
Dwight  Foster,  and  an  honest  man,  took  their  case  in  1864,  and  saw  the  true 
state  of  things  with  two  wills  right  behind  that  to  fall  back  upon,  he  would  not 
16 


be  guilty  of  longer  prosecuting  a  case  to  upset  a  will  fortified  like  that,  especially 
after  it  had  been  compromised  and  they  had  received  five  times  as  much  as  that 
testator  ever,  in  any  legal  testamentary  declaration  which  he  ever  made,  in¬ 
tended  that  they  should  have.  Now,  if  your  Honor  please,  look  at  the  action 
of  that  man’s  mind  as  it  is  displayed  there  upon  that  page  of  the  statement  of 
wills  where  it  can  be  seen  at  a  single  glance.  Can  your  Honor  see,  can  any¬ 
body  see,  any  sign  of  undue  influence  in  that?  There  is  the  record  of  that 
man’s  mind,  and  there  is  the  best  evidence  of  what  that  man’s  mind  was  for 
years,  stamped  there,  fixed  there,  so  that  we  can  read  it,  down  to  these  remote 
times,  14  years  after  the  old  man  died. 

(Adjourned  till  1  o’clock,  Thursday,  January  23,  1S79.) 

Jan’y  23,  ’79. 

May  it  please  your  Honor  :  Before  I  continue  my  argument  in  the  line  in 
which  I  was  going  at  the  adjournment  yesterday  afternoon,  I  will  cite  to  your 
Honor  a  case  which  bears  upon  a  part  which  I  have  already  gone  over;  —  the 
case  of  Wilson  v.  Beddard ,  Simon’s  Reports,  Volume  12,  page  28. 

“  The  will  in  this  ease  was  made  the  day  preceding  the  testator's  death,  and  when  he  was 
extremely  ill.  He  signed  it,  not  with  his  name,  but  with  his  mark;  in  doing  which  his  hand 
was  guided.  The  depositions  of  two  of  the  attesting  witnesses  taken  in  the  suit,  tended  to  im¬ 
peach  the  testator’s  competency.  Those  witnesses  having  died,  their  depositions  were  read  at 
the  trial.  The  Court  say:  “Next  it  was  contended  that  what  the  learned  Judge  said,  with 
reference  to  the  testator’s  hand  being  guided  when  he  made  his  mark  to  his  will,  was  not  law. 
The  Judge  said  that  it  was  necessary  that  the  will  should  be  signed  by  the  testator,  not  with  his 
name,  for  his  mark  was  sufficient  if  made  by  his  hand,  though  that  hand  might  be  guided  by 
another  person;  and  in  my  opinion,  that  proposition  is  correct  in  point  of  law.  For  the 
statute  of  frauds  requires  that  a  will  should  be  signed  by  the  testator,  or  by  some  other  person 
in  his  presence,  and  by  his  direction ;  and  I  wish  to  know,  if  a  dumb  man,  who  could  not  write, 
were  to  hold  out  his  hand  for  some  person  to  guide  it,  and  were  then  to  make  his  mark,  whether 
that  would  not  be  a  sufficient  signature  to  his  will.  In  order  to  constitute  a  direction  it  is  not 
necessary  that  anything  should  be  said.  If  a  testator,  in  making  his  mark,  is  assisted  by  some 
other  person,  and  acquiesces  and  adopts  it,  it  is  just  the  same  as  if  he  had  made  it  without  any 
assistance.  It  is  observable,  too,  that  before  the  mark  was  made,  the  testator  made  some  faint 
strokes  on  each  of  the  sheets.  My  opinion,  therefore,  is  that  the  observation  made  by  the 
learned  Judge  on  this  part  of  the  case,  was  quite  correct  in  point  of  law,  and  therefore,  it  affords 
no  ground  for  granting  a  new  trial.” 

Mr.  Chandler:  That  was  where  the  statute  required  a  direction  only?  It 
didn’t  say  express  direction.  It  says  direction.  Mr.  Drury:  Yes,  I  think 
so.  I  don’t  care  what  it  says.  You  have  a  good  opportunity  to  comment  up¬ 
on  it,  if  you  can  find  any  consolation  out  of  that  case,  or  out  of  the  statute. 

Another  point  which  I  will  call  up,  bearing  upon  the  date  of  the  execution, 
to  make  it  ten-fold  stronger  :  The  bank  records  were  not  attacked,  and  I  want 
to  ask  why  Mr.  O’Connor  did  not  attack  them,  if  they  were  attackable?  He 
was  eager  to  find  something  against  Isaac  T.  Smith,  and  was  looking  at  that 
draft  book  of  the  bank,  presumably  to  see  if  he  could  not  in  some  way  injure 
him.  He  was  glad  of  the  opportunity  to  come  to  Boston  to  testify  against  him, 
and  if  the  records  could  have  been  attacked  we  should  have  heard  of  it. 

The  case  of  Baxter  v.  Abbott ,  which  I  mentioned  yesterday  and  could  not 
find,  7  Gray,  71,  is  this  : — 


"9 


«  It  caiinot  be  given  in  evidence  against  the  will  that  one  of  the  attesting  witnesses,  who 
testified  in  the  probate  court  to  the  testator’s  sanity,  and  has  since  deceased,  declared  after  the 
probate,  that  he  wished  to  live  to  unsay  what  he  had  said,  and  that  the  testator  was  insane.” 

Even  if  Andrix  A.  Foster  had  said  of  this  will  of  Ebenezer  Smith  what  they 
are  trying  by  an  inference  to  make  him  say,  it  would  not  be  admissible  in 
evidence. 

And  another  thing :  I  forgot  to  speak  of  the  testimony  of  Mrs.  Eliza  W. 
Smith  in  regard  to  the  reading  of  the  will.  She  says,  “I  have  no  reason  to 
think  the  will  could  have  been  read  to  father,  but  still  it  might  have  been.”  As 
to  his  recognition  of  Mr.  Foster  she  says,  “I  don’t  think  he  recognized  Mr. 
Foster,  the  whole  thing  was  very  confusing.  If  there  had  been  any  remark  by 
Mr.  Foster,  I  shouldn’t  have  noticed  it.” 

I  come  now  again  to  the  subject  of  undue  influence,  and  upon  that  point,  I 
will  call  your  Honor’s  attention  to  the  case  Williams  v.  Goude ,  i  Hogg,  581  : 

The  influence  to  vitiate  an  act  must  amount  to  force  and  coercion,  destroying  free  agency 
— it  must  not  be  the  influence  of  affection  and  attachment, — it  must  not  be  the  mere  desire  of 
gratifying  the  wishes  of  another,  for  that  would  be  a  very  strong  ground  in  support  of  a  testa¬ 
mentary  act.  Further,  there  must  be  proof  that  the  act  was  obtained  by  this  coercion, — by 
importunity  which  could  not  be  resisted, — that  it  was  done  merely  for  the  sake  of  peace, — so 
that  the  motive  was  tantamount  to  force  and  fear.” 

This  decision  is  by  that  same  great  Judge  whom  I  have  cited  before  in  this 
case,  Sir  John  Nicholl.  And  the  will  of  October  5,  1864  was  executed,  not 
that  Ebenezer  Smith  might  have  peace,  but  that  there  might,  after  he  died,  be 
peace  among  his  descendants,  his  children,  and  he  made  it  willingly  without 
any  restraint,  not  for  the  sake  of  buying  his  own  peace,  but  for  the  sake  of 
peace  after  his  death.  I  say  this,  anticipating  any  perversion  which  may  come 
from  the  counsel  who  is  to  follow. 

The  only  testimony  upon  which  any  attempt  has  been  made  to  impeach  the 
will  of  August  13,  1864,  has  been  the  testimony  of  Eliza  W.  Smith,  who  says 
that  the  first  talk  of  guardianship  was  ten  years  before  her  father’s  death  —  it 
might  have  been  15  years.  Now  this  is  perfectly  laughable  to  those  who  know 
and  remember  what  kind  of  a  man  Ebenezer  Smith  was,  or  anything  about  his 
character.  The  idea  that  anybody  was  so  insane  as  to  let  the  idea  go  into  his 
head  that  it  was  possible  to  get  that  man  under  guardianship,  is  perfectly  absurd. 
And  then  she  says  he  used  to  say  “  They  will  put  me  under  guardianship  if  I 
do  this  or  that,”  when  repelling  some  advances  of  hers.  The  next  time  that  she 
heard  of  guardianship  was  when  her  father  came  out  there  to  West  Medford 
the  last  time  before  his  death,  and  told  Eliza  that  Isaac  had  been  on,  and  had 
made  him  make  a  will,  and  “  Isaac  made  me  promise  not  to  tell  you  what  he 
has  been  doing.  If  I  tell  you,  I  am  to  be  put  under  guardianship.  My  word 
is  passed  not  to  come  to  West  Medford  but  once.”  I  leave  that  alone  to  answer 
itself.  If  the  absurdity  of  a  statement  is  sufficient  answer  to  it,  there  could  not 
be  a  greater  degree  of  absurdity  than  that  statement,  and  hence  there  could  not 
be  a  more  complete  answer  to  it  than  to  leave  it  to  answer  itself.  The  idea 
that  Isaac  forced  his  father  to  make  a  will  and  made  him  promise  under  penal¬ 
ty  of  guardianship  not  to  tell  Eliza  and  not  to  go  to  Medford,  and  that  this  dread 


120 


of  guardianship  took  such  a  hold  of  the  old  man  that  he  went  right  out  to  his 
gabbling  daughter  at  Medford  and  committed  the  very  act  which  was  to  bring 
the  dreaded  consequence  upon  him  I  We  know  in  what  mint  that  idea  was 
coined,  for  there  is  only  one  in  the  world  capable  of  leaving  such  a  stamp. 

There  has  been  talk  of  the  Insane  Asylum,  of  there  having  been  talk  of 
putting  Ebenezer  Smith  into  an  insane  asylum.  Now  I  see  where  that  idea 
originated.  Here  is  a  letter  which  Ebenezer  Smith  wrote  to  his  beloved 
daughter  Eliza,  dated  February  9,  1861,  and  I  wish  to  call  your  Honor's  atten¬ 
tion  to  this  clause  in  that  letter : — 

“  I  was  in  hopes  to  have  done  something  through  this  charter  with  that  hateful  property 
which  has  been  the  means  of  almost  running  me  out  at  the  little  end  of  the  horn  just  before  I 
can  get  ready  to  die.  It  I  could  have  gone  to  the  insane  asylum  before  I  had  gone  to  West 
Medford  it  would  have  been  money  in  my  purse,  if  not  health  in  my  body.  But  I  was  not 
possessed  of  ‘  madness  and  malignity  ’  to  get  me  to  the  asylum  if  I  had  tried,  and  I  am  sure  / 
never  heard  or  knew  of  any  of  my  ancestors  or  of  blood  relations  that  were  so.” 

That  is  pretty  good  evidence  in  regard  to  the  man’s  hereditary  insanity, — 
would  be  very  good,  particularly  if  they  had  started  an  idea  of  hereditary 
insanity  in  the  family. 

The  petitioners  have  undertaken  to  show  by  the  testimony  of  their  father, 
and  of  themselves,  that  the  relations  existing  between  Ebenezer  Smith  and  the 
Burtons  were  very  cordial.  He  spoke  of  the  cordiality  and  tenderness  with 
which  Ebenezer  Smith  treated  his  daughter  Harriet.  I  have  no  doubt  she  de¬ 
served  to  be  treated  with  all  a  father’s  tenderness,  but  something, — her  husband 
probably,  his  disgrace, — had  alienated  him  from  her  even  during  her  life,  and 
that  sad  letter  of  Harriet  Burton  to  her  father  is  like  a  voice  from  the  grave 
which  comes  up  here  25  years  after  it  was  written,  after  she  has  been  in  the 
ground,  to  confute  and  confound  her  own  husband  and  her  own  sons,  —  yes, 
and  her  own  sister  whom  Harriet  in  that  letter  charges  with  being  the  cause  of 
the  “  awful  gulf”  which  existed  between  her  and  her  father.  If  there  was  this 
“  awful  gulf”  when  Harriet  was  alive  in  1853,  is  it  to  be  supposed  that  that  gulf 
narrowed  rather  than  widened  after  she  had  gone  ?  And  there  was  then  her 
presence  to  induce  him  to  these  cordial  relations  with  his  grandsons.  These 
sons,  this  husband,  this  sister  of  Harriet  Burton,  are  the  only  ones  to  tell  of 
these  cordial  relations.  If,  in  fact,  Ebenezer  Smith  did  tell  old  Burton  to  keep 
his  children  away  from  his  house,  depend  upon  it  it  was  done  in  order  that 
they  might  keep  away  and  because  he  did  not  want  to  see  them  there  any 
oftener  than  he  could  help,  or  anywhere  else.  When  he  met  his  son-in-law  the 
meeting  was  “  clandestine,  as  Mr.  Clapp  terms  it,  and  secret.  He  did  not  wish 
it  to  be  seen  that  he  was  on  terms  of  any  intimacy  with  Mr.  Burton.  The 
theory  of  the  relationship  with  the  Burton  family,  the  cordial  relationship,  is 
entirely  fictitious,  and  I  think  can  be  demonstrated  conclusively  to  be  so.  They 
build  up  a  theory  on  the  testimony  of  Hazen  J.  Burton,  Sr.,  and  other  worth¬ 
less  persons.  Then  from  that  for  a  basis  they  reason  that  the  will  is  inconsistent 
and  untrue;  and  they  must  say  the  same  of  the  wills  of  May  2,  1859,  and  of 
August  13,  1864,  which  give  them  just  the  same  amount  of  money.  Now  I 
reason  in  just  the  opposite  direction.  I  start  from  just  tire  opposite  point.  I 


I  21 


place  my  foundation  upon  the  testamentary  acts  and  declarations  which  Eben- 
ezer  Smith  put  down  in  writing  with  all  legal  solemnities,  deliberately,  and 
calling  good  men  to  stand  around  him  and  give  attestation  to  his  acts  and  decla¬ 
rations.  From  this  I  reason  conclusively  that  the  theory  of  the  cordiality 
existing  between  the  Burtons  and  Ebenezer  Smith  is  untrue.  They  say  :  When 
there  was  all  this  cordiality  which  we  have  shown,  would  he  have  made  those 
wills  freely?  I  say  :  When  we  know  that  he  did  make  those  wills  freely,  was 
there  this  cordiality?  They  say  that  the  theory  of  cordiality  contradicts  the 
wills.  I  say  the  wills  contradict  the  theory  of  cordiality.  And  I  ask  your 
Honor  which  starts  upon  the  better  foundation  ? — I  who  stand  upon  the  wills 
which  are  unchanged  and  unchangeable,  under  the  hand  and  seal  of  Ebenezer 
Smith,  sanctioned  by  every  solemnity  ;  or  they,  who  construct  a  theory  out  of 
their  own  minds  and  build  upon  that?  If  their  theory  is  not  untrue,  then  we 
are  compelled  to  come  to  the  conclusion  that  it  was  out  of  his  regard  and  love 
for  his  grandchildren  that  Ebenezer  Smith  did  not  give  them  money,  that  he 
thought  money  would  be  a  curse  to  them,  that  their  fond  old  grandfather 
thought  he  was  granting  them  a  blessing  in  not  giving  them  money  to  spoil  them 
as  he  had  spoilt  his  sons.  The  same  as  he  did  not  wish  to  spoil  them  with 
education  as  he  had  spoilt  his  sons  with  education. 

Their  theory,  too,  of  the  benevolent  character  of  Ebenezer  Smith  contradicts 
their  theory  of  this  cordiality.  If  he  was  such  a  benevolent  man, — and  I  don’t 
say  whether  he  was  or  not, — if  he  was  cordial  and  benevolent  to  strangers,  then 
that  proves  that  he  was  not  cordial  to  these  Burton  people,  because  he  did  not 
give  them  money ;  unless  upon  the  supposition,  which  I  have  just  made,  that 
he  thought  he  was  doing  them  a  favor  by  not  giving  them  money. 

Who  was  this  Ebenezer  Smith  of  whom  we  are  talking?  What  kind  of  a 
man  was  he?  What  kind  of  wax  was  this  which  for  five  and  one  half  years, 
the  latter  part  of  his  life,  could  be  formed  into  any  shape  desired  ?  What  do 
their  own  witnesses  say  about  him  in  this  respect?  Joshua  W.  Clapp,  who 
probably  knows  more  about  the  character  of  Ebenezer  Smith  than  any  other 
man  now  living  in  Boston,  from  his  confidential  relations  with  him  for  25  years, 
and  the  witness  of  the  petitioners,  a  very  able  man  himself,  who  has  encounter¬ 
ed  able  men,  has  drawn  this  graphic  picture  of  the  character  of  Ebenezer 
Smith  : — I  asked  him  this  question  : 

“  Now  in  regard  to  the  peculiarities  of  Ebenezer  Smith,  what  was  the  striking  peculiarity? 
If  you  were  going  to  describe  the  striking  peculiarity  of  that  man,  what  would  you  say  it  was, — 
you  said  he  was  a  very  peculiar  man?  ”  A.  Yes,  sir.  Well,  the  most  striking  characteristic 
of  him  was,  he  was  very  slovenly,  and  very  neat.  One  day  he  would  be  Apollo  Belvedere,  and 
the  next  day  you  would  think  he  was  the  Rag  Picker  of  Paris.”  Q.  “What  I  mean  is  mentally  ?” 
A.  “  I  think  he  was  shrewd  and  sharp,  far-seeing  and  far-sighted,  I  think  he  was  as  keen  as 
a  brier,  I  think  he  was  the  smartest  business  man  I  have  come  in  contact  with  since  I  have 
been  on  the  list  of  action.  He  could  see  farther  into  a  trade  than  any  man  I  saw,  and  his 
prophecies  were  wonderful,  and  they  have  come  true  since  his  death  and  during  twenty  or 
thirty  years  contact  with  him.”  Q.  “Was  he  secretive?  What  I  mean  by  that  is  secret?’’ 
A.  “Yes,  sir:  I  think  that  he  was.  I  think  he  admired  to  be.”  Q.  “  Rather  misleading?’’ 
A.  “  I  think,  sir,  that  you  would  be  deceived  in  him  very  easily  indeed.”  Q.  “  He  would  make 
one  man  think  he  was  doing  one  thing  and  another  man  he  would  make  think  he  was  doing  the 


122 


opposite  thing?”  A.  “I  think  Ebenezer  Smith  was  an  honest  man,  but  I  think  he  had 
peculiar  ways  of  manipulating  his  doings  in  such  a  manner  as  to  make  it  none  of  your  busi¬ 
ness  to  attend  to  his  business,  and  if  you  attempted  to  get  anything  out  of  him,  I  don’t  believe 
you  would  succeed  very  well.”  Q.  “  If  you  undertook  to  find  out  what  he  was  about?”  A.  “  I 
don’t  believe  you  would  find  it  out  ”  Q.  *•  Was  he  a  man  of  firm  purpose?”  4.  “  I  always 
looked  upon  him  as  being  a  man  of  indomitable  will  and  industry  and  perseverance,  up  early 
and  late,  studying  all  the  time.”  Q.  “  Was  he  a  man  that  could  be  easily  controlled?”  A.  “  I 
would  as  soon  undertake  to  control  the  north  wind  as  control  him.” 

That  is  the  kind  of  a  man  Ebenezer  Snlith  was  as  described  by  their  own 
witness. 

And  what  does  Mr.  J.  W.  Rollins,  also  called  by  them,  say  ?  His  counsel  for 
ten  years,  who  knew  him  very  well  and  had  occasion  to  know  pretty  well  what 
kind  of  a  man  Ebenezer  Smith  was  as  regards  to  firmness  says  : — “  Remarkably 
firm  man  ;  anybody  who  called  him  stubborn  would  not  be  guilty  of  slander ; 
very  firm :  not  easily  intimidated ;  very  strong  character.”  Dr.  Thorndike 
speaks  of  him  in  the  same  manner.  And  Eliza,  even,  felt  obliged  to  say  that 
he  was  a  very  tenacious  man.  Mr.  Loring  asked  Mr.  Clapp  :  “  Don’t  you 

remember  once,  Mr.  Clapp,  that  he  left  $50,000  on  deposit  in  one  of  the  banks 
k  here  in  Boston  and  would  not  touch  it,  although  it  was  not  drawing  interest  for 

several  years, — that  grew  out  of  the  Boston  and  Maine  controversy?”  “I  re¬ 
member  it  well,”  says  Mr.  Clapp,  “  I  was  interested  in  it  for  14  years.”  That 
is  the  kind  of  wax  that  could  be  formed  to  suit  anybody’s  purposes  for  the  last 
five  and  a  half  years  of  his  life,  either  by  fear  or  by  persuasion.  A  man  ten¬ 
acious  of  his  rights,  as  he  showed  by  employing  nine  lawyers  at  a  time. 

Now  we  have  to  start  with,  if  your  Honor  please,  the  legal  presumption  that 
the  will  was  not  procured  by  undue  influence.  To  attempt  to  sustain  the 
theory  of  undue  influence,  the  petitioners  must  abandon  the  first  seven  alle¬ 
gations  in  their  petition  altogether  ;  they  must  suppose  that  Isaac  T.  Smith  was 
voluntarily  doing  a  thing  which  was  creditable  to  him,  and  yet  they  must  go 
from  that  supposition  to  the  absurd  supposition  that  the  same  man  was  actively 
striving  by  undue  means  to  force  his  father  to  deprive  him,  Isaac,  of  a  large 
share  of  his  estate  which  proved  to  be  over  $15,000;  that  Isaac’s  mother  and 
sister  Sarah  were  doing  the  same  thing,  though  not  so  much  to  their  prejudice, 
yet  to  their  prejudice,  and  that  the  only  one  who  was  not  using  undue  influence 
was  his  sister  Eliza  who  was  benefitted  by  the  will  at  the  expense  of  all  the 
rest  over  $17,000  ;  they  have  to  attack  the  testamentary  capacity  of  Ebenezer 
Smith  for  the  last  five  and  one-half  years  of  his  life,  Ebenezer  Smith  whom 
their  own  witnesses  describe  as  one  of  the  ablest  of  men  ;  they  have  to  break 
through  that  whole  line  of  wills  and  codicils  which  are  exhibited  upon  that 
statement,  those  wills  and  codicils  prepared  at  his  request  by  honest  men  and 
men  of  high  standing  and  ability,  and  attested  by  respectable  witnesses ;  and 
they  have  to  construct  a  theory  wholly  at  variance  with  the  conception  of 
Ebenezer  Smith’s  character  as  conceived  by  every  disinterested  man,  and  I 
may  say  even  as  conceived  by  themselves. 

Now  I  pass  by  for  the  present  that  ear-trumpet  allegation  in  the  petition,  the 
9th  I  think  it  is,  which  I  will  refer  to  again. 


123 


Thus  far  I  have  endeavored  to  place  the  evidence  before  your  Honor  in  such 
form  that  it  could  be  seen  without  the  trouble  of  reading  all  that  testimony 
through,  and  thus  have  been  extracting,  as  it  were,  the  wheat  from  the  chaff. 

All  this  evidence  shows, — First :  That  Ebenezer  Smith  when  he  executed  that 
will  was  of  sound  mind.  Second :  That  he  made  the  will  and  duly  signed  it, 
and  it  was  duly  attested  by  three  competent  witnesses.  Third:  He  understood 
what  was  done,  and  understood  the  contents  of  the  will.  Fourth  :  He  had  per¬ 
fect  freedom  of  will,  and  the  will  was  not  procured  by  undue  influence. 

This  case,  thus  far,  completely  refutes  the  idea  of  conspiracy  to  defraud  the 
Burtons,  for  we  know  that  the  will  did  not  affect  them  one  dollar  ;  refutes  the 
idea  of  forgery,  for  it  prejudiced  no  one  but  him  who  is  charged  with  the  forge¬ 
ry,  and  there  is  not  the  presence  of  any  conceivable  motive  for  forgery,  the  act 
was  done  openly  and  above  board  ;  it  refutes  the  idea  of  procuring  a  false  will 
to  be  witnessed,  for  the  same  reasons,  and  the  witnesses  saw  what  was  done 
and  were  not  imposed  upon  ;  it  refutes  the  idea  of  the  publication  of  a  false 
will,  or  procuring  its  probate  by  perjury  or  imposition  upon  the  court,  for  it 
would  have  been  a  benefit  to  those  who  propounded  the  will,  if  it  had  been  re¬ 
jected,  and  especially  a  benefit  to  him  who  is  charged  with  having  been  the 
principal  offender  ;  and  it  refutes  the  idea  that  the  Burtons  were  cheated,  for  the 
will  did  not  deprive  them  of  a  single  dollar. 

Did  ever  a  more  groundless  case  come  into  court?  Was  ever  a  case  prose¬ 
cuted  with  greater  malignity  and  in  a  more  aggravating  and  cruel  manner,  or 
in  a  manner  better  calculated  to  wound  the  hearts,  distress  the  feelings,  injure 
the  health  and  shorten  the  lives  of  innocent  people,  to  whom  an  attempted 
stain  upon  their  spotless  character  and  lives  is  worse  than  the  dagger  of  an 
assassin  in  the  heart?  Do  not  the  movers  in  this  case  deserve  to  be  blasted  to 
eternal  infamy? — for  they  are  worse  than  the  assassins  of  lives,  they  are  the 
assassins  of  good  character  and  reputation  which  are  the  immediate  jewels  of 
the  souls  of  the  upright,  dearer  and  more  precious  to  them  than  life  itself. 

And  is  not  our  case  proved  already,  may  it  please  your  Honor?  I  have  en¬ 
deavored  to  aid  the  court  to  come  to  a  conclusion  without  difficulty,  and  to 
comprehend  the  monstrous  character  of  the  prosecution  of  this  case.  This  case 
has  occupied  a  great  deal  of  my  time  for  months.  I  have  thought  about  it  a 
great  deal,  and  I  felt  it  my  duty,  not  only  to  my  clients,  but  to  your  Honor  and 
to  the  community  which  has  been  outraged  by  the  petitioners  in  their  prosecu¬ 
tion  of  this  case  in  this  outrageous  manner  in  which  it  has  been  prosecuted 
and  published.  This  case  concerns  every  innocent  man  and  woman,  and  ought  t 
to  receive  such  a  judgment  that  every  innocent  man  and  woman  will  be 
encouraged  and  every  guilty  man  and  woman  rebuked.  I  knew  that  your 
Honor’s  time  has  been  greatly  occupied  with  the  many  and  increasing  duties 
which  your  office  requires,  and  I  trust  I  may  have  the  satisfaction  of  feeling 
that  I  have  saved  some  of  your  Honor’s  time  hereafter  by  putting  the  evidence 
together. 

This  case  is  invulnerable  thus  far  at  every  point.  I  feel  that  the  case  is  won. 
Ordinarily  I  should  be  content  to  stop  here,  but  my  object  is  not  merely  to  win 


124 


this  case,  but  to  show  that  it  is  without  the  shadow  of  foundation.  It  is  im¬ 
portant  to  my  clients  that  this  should  be  shown,  and  that  the  character  of  the 
whole  case  brought  against  us  should  be  set  forth  in  its  true  light.  I  proceed 
to  perform  that  duty,  and  this  will  have  some  bearing  perhaps  upon  questions 
which  will  be  raised  hereafter  in  this  court  after  the  case  is  decided. 

Strong  as  this  case  is  on  the  grounds  which  I  have  already  gone  over,  the 
strongest  part  yet  remains.  This  is  a  small  part  of  the  case.  I  have  been  ar¬ 
ranging  the  evidence  in  its  proper  order,  and  concentrating  and  summarizing 
it,  so  that  the  court  might  see  that  the  will  was  a  valid  will  in  itself.  But  sup¬ 
pose  your  Honor  to  be  convinced  that  there  is  no  more  question  about  the 
validity  of  that  will  than  about  the  validity  of  the  best  will  that  was  ever  made  ; 
that  would  be  the  weaker  part  of  our  case.  Suppose  it  were  an  invalid  will 
originally,  we  have  a  ground  of  defence  which  would  be  just  as  strong  as  if  it 
were  the  most  valid  will  ever  seen  or  made. 

We  are  not  here,  your  Honor,  for  the  purpose  of  propounding  a  will.  We 
are  here  to  show  why  a  will  propounded  14  years  ago  shouid  not  be  disturbed. 
We  are  here  talking  about  a  will  which  was  admitted  to  probate  14  years  ago, 
and  which  has  stood  14  years  undisturbed.  If  so  much  could  have  been  said  in 
its  favor  14  years  ago  when  originally  offered  for  probate,  how  much  stronger 
the  argument  against  revoking  at  this  late  day  the  probate  which  has  stood  so 
long  !  Says  Pollock,  J.,  2  Hurlston  &  Norman,  623  : — “  It  is  a  maxim  of  the 
law  of  England  to  give  effect  to  everything  which  appears  to  have  been  estab¬ 
lished  for  a  considerable  course  of  time,  and  to  presume  that  what  has  been 
done  has  been  done  of  right  and  not  of  wrong.”  But  the  counsel  for  the  peti¬ 
tioners  undertook  to  say,  when  this  case  was  begun  on  the  4th  of  December, 
that  we  could  not  have  the  benefit  of  that  14  years,  and  he  has  cited  I  don’t 
know  how  many  out  of  the  134  authorities  which  your  Honor  is  to  have  the 
pleasure  of  reading  in  support  of  that  proposition.  And  how  absurd  it  is  ! 
Why,  he  hugs  a  delusion,  and  it  is  hard  to  get  it  out  of  him.  He  had  that  de¬ 
lusion  that  he  could  file  interrogatories  in  this  Probate  Court,  and  he  put  in  here 
a  brief  of  22  pages  to  show  that  you  could  file  interrogatories  to  an  executor 
just  the  same  as  you  could  to  parties  in  an  ordinary  action  at  law,  and  we  had  to 
be  here  and  argue  the  A  B  Cs  of  law,  because  we  saw  him  so  persistent  in  it, 
and  I  don’t  know  but  what  he  may  be  persistent  in  this  yet.  But  to  save  your 
Honor  any  thought  or  looking  up  any  authority  upon  it,  I  will  just  call  atten¬ 
tion  to  the  cases  which  he  has  cited  upon  that  point,  which  I  know  do  not  sus¬ 
tain  what  he  contends  that  they  do.  The  first  case  which  he  cites  on  the 
brief  is  Collier  v.  Idleys'  Executors,  1  Bradford,  94.  That  is  a  New  York 
case  decided  at  a  time  when  the  statute  provided  that  if  allegations  were  made 
at  any  time  within  one  year,  the  heirs  might  call  upon  the  executor  to  prove 
the  will  anew,  to  prove  it  de  novo ,  a  decision  made  under  a  statute,  and  it  was 
decided  that  the  original  probate  could  not  be  brought  up  as  prima  facie  evi¬ 
dence.  That  is  the  law  also  in  England  where  they  had  (I  don’t  know  how  it 
is  now)  the  proof  by  common  form  and  the  proof  by  solemn  form  or  after  cita¬ 
tion.  The  heirs,  or  those  not  cited,  could  call  upon  the  executor  atanj'  time  to 


125 


prove  the  will  anew,  and  he  had  to  proceed  just  as  if  it  had  never  been  admitted 
to  probate.  And  these  cases  are  cases  bearing  upon  that.  Now  don’t  we 
know  that  here  in  this  State  of  Massachusetts  we  can  rely  upon  the  probate  of 
a  will  ?  Don’t  we  know  that  an  executor  cannot  be  called  upon  every  week  to 
begin  de  novo  and  set  up  a  will  ?  Don’t  we  have  common  sense  to  know  that 
you  cannot  keep  executors  trotting  through  this  court  in  that  way  forever? 

Mr.  Chandler :  That  is  admitted.  Mr.  Drury:  Well,  I  am  glad  to  see 
one  idea  of  common  sense  enter  the  head  of  the  counsel  for  the  petitioners.  I 
don’t  know  what  the  object  is  of  citing  these  criminal  cases  upon  that  point.  I 
know  what  the  effect  of  them  is,  and  that  is,  that  the  probate  is  not  any  answer 
to  a  criminal  indictment.  That  is  very  well  known. 

Mr.  Chandler :  Did  you  know  that  you  had  got  hold  of  the  wrong  list  of 
cases?  Mr.  Loring :  Perhaps  you  got  hold  of  the  wrong  one,  when  you  gave 
it  to  us  as  the  one  you  relied  upon. 

Mr.  Chandler :  If  I  made  a  mistake,  I  will  look  out  for  it.  Brother  Drury 
has  got  hold  of  the  wrong  list  of  cases.  The  cases  are  put  under  their  several 
heads.  You  have  got  hold  of  the  wrong  head.  Mr.  Drury :  The  head  is, 
“  De  novo,  will  to  be  proved  anew.”  Is  not  that  the  right  head  ? 

Mr.  Chandler :  That  is  the  right  head  for  those  cases.  Mr.  Drury  :  Rex 
v.  Buttery. 

Mr.  Chandler:  Your  point  is  you  are  speaking  about  the  lapse  of  time? 
Mr.  Drury :  I  am  talking  about  this  absurd  idea  that  here  in  this  Common¬ 
wealth  we  are  obliged  to  prove  a  will  anew  14  years  after  it  has  been  admitted 
to  probate,  which  we  know  to  be  very  absurd.  We  know  very  well  that  the 
admission  of  a  will  to  probate,  if  it  is  forged,  is  no  answer  to  a  criminal  indict¬ 
ment.  Nothing  that  takes  place  in  a  civil  case  can  be  brought  as  a  defence  to  a 
criminal  indictment  brought  by  the  Commonwealth.  And  inasmuch  as  this  is 
the  law,  I  ask  the  counsel  again,  and  I  ask  the  petitioners,  why  don’t  they  indict 
Isaac  T.  Smith  ? 

Mr.  Chandler:  Because  the  statute  of  limitations  saves  him.  Mr.  Drury: 
The  statute  of  limitations  does  not  apply  to  Isaac  T.  Smith.  It  applies  only  to 
those  who  have  been  residents  of  this  Commonwealth  six  years.  Gen.  Stats, 
c.  1 7 1 ,  §  20. 

What  difference  does  it  make  now,  your  Honor?  I  say  we  rest  upon  the 
probate  of  that  will.  What  difference  does  it  make  now  at  this  time  whether 
that  will  was  valid  or  not  in  law?  I  don’t  care,  as  far  as  the  legality  of  that  is 
concerned,  whether  that  will  was  or  was  not  originally  valid.  I  don’t  care  if  it  had 
been  a  piece  of  brown  paper,  or  if  it  had  been  the  affidavit  of  Eliza  W.  Smith — 
false  as  hell — if  it  had  been  admitted  to  probate  as  a  will  in  the  way  this  was. 
If  it  had  been  admitted  to  probate  under  the  circumstances  under  which  this 
will  was  admitted  it  could  not  be  disturbed.  Was  there  any  fraud  in  the  ad¬ 
mission  of  that  will  to  probate?  Was  not  everything  about  that  will  known 
which  ought  to  have  been  known?  Was  there  any  concealment  which  would 
vitiate  that  probate  ?  If  not,  then  was  the  time  to  contest  it,  after  this  Court 
had  appointed  a  guardian  for  the  petitioners  to  look  out  for  their  interests^ 


*7 


126 


That  was  the  time  to  oppose  it.  And  I  wish  to  call  your  Honor’s  attention 
now  at  this  point  to  what  must  have  struck  everybody  interested  in  this  case, — 
the  conspicuous  absence  of  Andrew  N.  Burton,  the  guardian  ad  litem  of  the 
petitioners  at  the  time  when  that  compromise  was  made.  I  heard  this  long  list 
of  witnesses  of  theirs  come  here  and  testify,  and  I  kept  wondering  why  doesn’t 
Andrew  N.  Burton  come  here  and  testify?  When  the  case  was  closed  for  the 
petitioners,  I  called  their  counsel’s  attention  to  that  fact  then,  and  said  I,  “Are 
you  not  going  to  call  Andrew  N.  Burton?”  Andrew  N.  Burton,  the  witness 
of  all  witnesses  who  should  have  been  produced,  was  not  here,  and  was  con¬ 
spicuous  by  his  absence.  They  brought  the  guardian,  Lyman  L.  Harding, 
who  had  nothing  to  do  with  that  compromise,  who  was  not  appointed  until 
after  the  compromise  had  been  made  and  the  will  had  been  admitted  to  probate, 
the  letters  testamentary  issued  to  the  executors,  who  had  nothtng  whatever  to 
do,  who  knew  nothing  about  the  case.  They  had  Lyman  L.  Harding  here  to 
testify,  and  yet  the  very  man  of  all  others,  whom  this  Court  had  appointed  to 
look  out  for  the  interests  of  these  minors,  has  not  shown  his  head.  Have  they 
proved,  as  the  burden  is  upon  them  to  prove,  that  there  was  anything  in  the 
circumstances  of  the  execution  of  that  will,  or  in  the  probate  of  that  will,  which 
ought  to  have  been  known,  which  was  not  known?  Have  they  proved  it, 
when  they  have  kept  this  Andrew  N.  Burton  away?  If  he  knew  it,  it  binds 
them.  And  he  does  not  come  here  to  say  that  he  had  no  knowledge  how  the 
will  was  executed.  What  evidence  have  we  of  the  proceedings  here  in  the 
Probate  Court?  Nowhere  are  these  witnesses  who  have  testified  about  it ; 
Eliza  W.  Smith,  Anna  G.  Giles,  Ebenezer  Smith,  Arthur  G.  Smith,  Dr. 
Thorndike,  Edward  D.  Sohier  and  Dwight  Foster.  All  three  of  the  witnesses 
to  the  will  were  examined  when  it  was  offered  for  probate.  Eliza  says  the  ex¬ 
amination  was  an  hour  or  so.  Giles  remembers  at  one  time  that  she  was  not 
asked  whether  Mr.  Smith  was  conscious  in  her  opinion,  and  then  again  she 
answers  that  she  was  asked  that  question.  She  undertakes  to  remember  not 
only  what  questions  were  asked  her,  but  what  questions  were  not  asked  her. 
Put  a  particular  question  to  her,  she  will  say  “  No,  I  was  not  asked  that,”  but 
she  says,  “  If  I  had  been  asked  if  I  saw  Ebenezer  Smith  sign  that  I  should  have 
said  no.  I  saw  his  son  Isaac  take  hold  of  his  hand,” — and  all  through  that, — 
“  and  he  was  not  conscious  at  all  any  more  than  a  dead  man,”  and  all  that 
stuff.  If  it  did  come  out  here  fourteen  years  ago,  they  knew  it.  If  it  came  out 
fourteen  years  ago  in  this  court  that  Mrs.  Giles  thought  he  was  unconscious  at 
the  time,  if  it  came  out  here  in  this  court  that  Isaac  guided  his  hand,  that  binds 
these  petitioners,  because  they  had  counsel  here  at  that  time,  they  had  a 
guardian  ad  litem  at  that  time,  for  this  very  case  who  had  been  appointed  by 
this  Court  at  that  very  time  for  over  ten  days  to  look  out  for  their  interests.  If 
it  came  out  in  this  court,  it  was  the  neglect  of  their  guardian  ad  litem  that  he 
didn’t  know  it.  Young  Ebenezer  rather  thinks  he  was  here,  but  is  not  exactly 
sure  whether  he  was  or  not.  Arthur  was  here ;  he  says  he  thinks  Dwight 
Foster  was  here.  Dr.  Thorndike  does  not  remember  anything  about  it,  except 
that  Mr.  Sohier  and  himself  were  here.  And  Mr.  Dwight  Foster  does  not  re- 


127 

member,  has  not  the  slightest  recollection,  very  poor  memory,  that  he  was 
here,  and  yet  I  will  see  what  he  says : — 

“  My  belief  is  I  must  have  been  at  the  hearing  in  the  Probate  Court  when  the  will  was 
offered  for  probate.  I  understood  it  was  a  question  whether  he  possessed  testamentary  capacity 
and  whether  undue  influence  was  exercised  over  him.  I  called  on  the  witness  Foster  and  en¬ 
quired  as  carefully  as  I  could  as  to  the  circumstances  of  the  execution.  I  probably  was 
present  in  the  Probate  Court.  I  asked  Mr.  Foster  carefully  about  the  execution  and  the  sign¬ 
ing.  No  recollection  of  seeing  Giles  and  Patterson;  cannot  say  whether  or  not  they  were 
brought  to  my  office.  I  don’t  know  whether  or  not  I  ever  saw  the  other  compromise,  have  no 
recollection  of  it.”  Then  looking  at  the  petition  for  the  appointment  of  Andrew  N.  Burton  as 
guardian  ad  litem,  he  says,  “  The  inference  is  very  strong  that  I  attended  the  hearing  in  the 
Probate  Court.”  It  was  negligence  if  he  did  not,  which  negligence  is  not  to  be  presumed  of  a 
man,  a  lawyer  of  the  reputation  and  standing  of  Dwight  Foster,  afterwards  a  Judge  of  the  Su¬ 
preme  Court  of  Massachusetts.  “  I  got  the  impression  from  what  Foster  said,”  he  adds,  “that 
I  had  a  chance  of  contesting  the  will,  and  assented  to  the  compromise  because,  while  I  thought 
it  quite  possible  a  jury  would  not  find  the  last  will  properly  executed  in  consequence  of  the  ex¬ 
ceeding  feebleness  of  the  testator,  yet  there  were  prior  wills  which  gave  my  clients  no  larger 
provision.  I  made  all  the  enquiry  I  knew  how  to  make  at  the  time.  I  should  suppose  the  sig¬ 
nature  would  naturally  excite  enquiry  among  those  interested  in  the  will.  The  statement  of 
Mr.  Foster  was  that  the  testator  was  exeeedingly  feeble  and  weak,  but  he  thought  he  under¬ 
stood  what  was  taking  place  at  the  time.  I  had  no  information  of  forgery  in  the  technical 
sense,  but  thought  there  was  some  evidence  of  procuring  the  signature  of  a  man  who  had  not 
testamentary  capacity.” 

Does  anybody  mean  to  say,  your  Honor,  after  a  case  has  been  litigated  in 
this  court  once,  with  this  evidence  as  given  now,  evidence  of  this  kind,  after 
everybody  has  forgotten  what  evidence  was  related,  after  everybody  has  forgot¬ 
ten  what  they  knew,  does  anybody  soberly  mean  to  say  that  we,  when  that  pro¬ 
bate  is  attacked,  are  compelled,  and  have  the  burden,  to  establish  that  will  anew  ? 
Too  absurd  to  think  of  3  Does  your  Honor  suppose  that  a  will  could  be  palmed 
off  upon  you  in  which  the  testator’s  hand  had  been  guided,  without  your  learn¬ 
ing  the  fact?  Do  you  suppose  that  would  be  possible  in  the  case  of  yourself? 
Would  it  be  possible  in  case  of  any  Judge,  or  anybody  fit  to  be  a  Judge  of  the 
probate  court  of  the  county  of  Suffolk?  And  Isaac  Ames  was  that.  “Did 
you  see  him  sign  it,”  you  would  ask.  You  would  even  ask  if  he  signed  it 
without  any  assistance.  You  would  ask  all  the  particulars,  and  you  would  do 
that,  your  Honor,  with  one  of  the  witnesses,  even  when  there  was  no  contest. 
But  if  there  were  any  opposition,  you  would  be  very  careful  to  bring  out  every 
fact,  and  especially  with  such  a  signature  as  that.  The  idea  that  Isaac  Ames, 
looking  at  that  signature,  did  not  ask  how  that  signature  was  made  is  perfect 
folly.  There  are  his  checkmarks  as  he  called  each  witness ;  he  pencilled  them 
on  the  left,  as  he  always  did.  And  the  idea  of  supposing  that  a  lawyer  like 
Dwight  Foster,  seeing  that  signature,  being  here  as  he  was  from  every  inference, 
and  we  might  presume  that  he  was  here,  because  it  has  not  been  proved  that  he 
was  not, — the  idea  that  Dwight  Foster  saw  that  signature  without  finding  out 
from  those  witnesses  when  they  were  on  the  stand  here  under  oath  how  it  hap¬ 
pened  to  be  made  in  that  way  is  another  absurdity.  And  then  we  have  to 
suppose  that  Mr.  H.  L.  Hazelton  and  Darwin  E.  Ware,  who  were  then  of  the 
firm  of  Hazelton  &  Ware,  did  not  call  attention  to  that.  We  have  got  to  sup- 


128 


pose  that  that  will  ran  the  gauntlet  of  so  many  lawyers,  and  that  the  fact  was , 
not  brought  out,  that  the  truth  was  not  brought  out,  as  to  the  manner  in  which 
that  signature  was  made,  on  an  examination  which  took  place  an  hour  or  so  ! 

The  witnesses  to  that  will,  as  I  have  shown  your  Honor  in  a  previous  part  of 
my  argument,  knew  everything  about  the  making  of  that  signature,  which  was 
of  any  importance  for  them  to  know.  After  having  proved  that  the  will  was 
duly  executed,  the  executors  were  not  obliged  to  go  any  further.  There  was 
nothing  to  conceal,  the  witnesses  were  all  here  ;  and  wre  know  just  as  well  as  if 
we  had  heard  them  yesterday,  we  know  that  it  came  out,  we  know  that  it  must 
have  come  out,  we  know  that  it  would  have  come  out  under  a  capable  Judge, 
we  know  it  would  have  come  out  under  your  Honor  and  any  other  Judge  of 
probate,  just  how  that  signature  was  made.  But  I  call  the  attention  of  your 
Honor  to  what  Mrs.  Giles  says.  Now  this  is  another  point  which  affects  her 
credibility.  We  find  all  these  other  witnesses  saying  they  don’t  remember 
whether  such  and  such  questions  were  asked  or  not.  But  we  find  this  Giles 
woman  ready  to  answer  any  question  that  is  asked  her,  and  she  does  it  positively 
almost  every  time,  and  almost  before  we  get  the  question  out  of  our  mouth. 
And  we  know  your  Honor  cannot  tell  what  questions  were  put  to  any  particu¬ 
lar  witness  who  has  been  examined  in  the  course  of  this  trial  during  this  past 
month.  If  your  Honor  were  called  upon  to  do  it,  if  I  were  to  ask  you,  was 
this  witness  asked  that  question  and  was  he  asked  that  and  that,  and  were  I  to 
make  some  supposed  question,  your  Honor  could  not  tell  that.  No  human  mind 
can  tell  it,  Unless  you  take  it  down.  Perhaps  the  substance  could  be  told,  per¬ 
haps  the  effect  of  the  testimony  could  be  given,  but  the  idea  of  remembering 
what  questions  were  asked  and  what  were  not  asked  and  of  relating  them,  even 
of  the  witnesses  of  a  month  past,  —  it  cannot  be  done.  You  can  tell  some 
things,  you  can  pick  out  some  things.  Now  there  is  Mr.  Clapp’s  testimony  ; 
anybody  can  remember  that,  almost  give  it  off  word  for  word  in  that  graphic 
language  which  he  used.  I  don’t  suppose  he  meant,  when  he  said  Ebenezer 
Smith  was  like  Apollo  Belvedere,  that  he  sometimes  appeared  in  the  streets 
naked  ;  he  only  meant  by  that,  that  sometimes  Mr.  Smith  appeared  very  well 
dressed.  An  unhappy  illustration,  probably,  but  that  was  what  the  meaning  of 
it  was, — sometimes  very  neat  and  at  other  times  very  slovenly.  There  in 
Mr.  Clapp’s  testimony  was  something  which  would  strike  anybody,  but  the 
idea  of  remembering  all  the  details  of  testimony,  carrying  it  down  from  year 
to  year  for  14  years  in  the  memory  of  a  nurse  is  perfectly  absurd.  How¬ 
ever,  whether  the  circumstances  came  out  in  regard  to  the  execution  of  that 
will  or  not,  due  care  would  have  brought  those  circumstances  out.  If  they 
were  not  brought  out,  it  was  not  our  fault.  We  concealed  nothing  ;  there  was 
nothing  to  conceal.  It  would  have  been  a  benefit  to  Isaac,  yes,  a  benefit  to  the 
extent  of  $15,000  and  over  to  Isaac,  it  would  have  been  a  benefit  to  Mrs.  Eb¬ 
enezer  Smith  and  to  Sarah,  if  the  will  had  been  rejected,  for  if  the  last  will  was 
invalid,  the  prior  will  was  not  revoked.  If  it  was  not  valid  as  a  will,  then  it 
was  not  valid  as  a  revocation  of  the  prior  will.  So  of  each  will  behind  it.  It 
falls  back  upon  the  other.  If  the  last  will  is  not  valid  as  a  will,  it  is  not  valid 


129 


as  the  revocation  of  a  will.  Then  Dwight  Foster  thought  there  was  a  good 
chance  of  contesting  that  will.  It  was  kept  in  the  Courts,  and  in  the  Supreme 
Court  one  year,  and  it  came  on  for  trial  finally  in  September  and  October  1865, 
as  shown  by  the  'summons  to  the  witnesses  ;  and  Eliza  W.  says  she  went  to 
court  herself,  and  was  called  up  there  in  court  to  come  and  sign  this  compro¬ 
mise  which  was  made  ;  it  was  signed  in  the  court  room  on  the  very  day  of  the 
trial,  and  I  presume  that  the  witnesses  testified  there  in  court.  I  know  this,  that 
the  jury  did  find  there,  as  it  appears  by  their  verdicts  which  I  have  shown  your 
Honor,  and  which  are  in  the  case,  that  a  jury  did  find  upon  each  and  every  one 
of  the  three  issues  which  were  presented  to  them,  and  the  verdicts  are  signed 
by  the  foreman  of  the  jury  who  found,  first, — that  the  will  was  signed  by  Eb- 
enezer  Smith  or  by  some  person  in  his  presence  and  by  his  express  direction 
and  was  attested  and  subscribed  by  three  competent  witnesses  in  his  presence. 
Then  there  was  the  issue  of  undue  influence  found  in  favor  of  the  executors ; 
and  there  is  one  other,  I  forget  now  what  the  issue  was, — oh,  was  he  of  sound 
and  disposing  mind  and  memory?  And  they  found  he  was;  and  that  appears 
and  there  is  evidence  there  to  establish  that  fact,  and  the  Judge  presumably 
instructed  the  jury,  although  there  was  not  a  formal  trial,  to  find  a  verdict  in 
favor  of  the  executors. 

Well,  after  being  a  year  in  court,  after  Judge  Foster  had  had  every  opportu¬ 
nity  to  find  out  everything  to  be  known  about  that  will,  it  was  settled  by  a  fam¬ 
ily  compromise  in  which  all  the  heirs-at-law  of  Ebenezer  Smith  were  repre¬ 
sented, — a  family  compromise.  And  here  is  what  our  Supreme  Court  say  of  a 
family  compromise,  in  Leach  v.  Fobes ,  11  Gray,  506,  a  case  in  Equity:  — 

‘‘  The  agreement  set  out  in  the  bill  is  of  a  nature  which  is  entitled  to  the  highest  favor  at  the 
hands  of  a  court  of  equity.  It  is  the  result  of  a  family  compromise  of  a  controversy  which 
had  arisen  between  the  heir-at-law  and  devisee  of  a  testator  concerning  his  sanity  and  free 
agency  at  the  time  of  making  his  last  will.  Such  contracts  are  not  against  public  policy.  On 
the  contrary,  as  they  contribute  to  the  peace  and  harmony  of  families  and  to  the  prevention  of 
litigation,  they  will  be  supported  in  equity  without  an  inquiry  into  the  adequacy  of  the  consid¬ 
eration  on  which  they  are  founded.” 

Mr.  Chandler : — Read  the  next  sentence.  Mr.  Drury  : — You  can  read  it. 
That  is  all  I  have  written  here.  Mr.  Chandler  : — I  shall  have  to  if  you  don’t. 
Mr.  Drury : — You  can  do  it  if  you  want  to.  That  is  what  a  family  compro¬ 
mise  is  in  a  court  of  equity,  even,  where  they  even  decreed  a  specific  perform¬ 
ance  of  the  compromise.  If  entitled  to  the  highest  consideration  in  a  court  of 
equity,  then  how  much  higher  consideration  it  is  entitled  to  in  a  court  of  law 
and  in  a  Probate  Court.  I  didn’t  bring  over  the  Law  Library  with  me,  so  I 
cannot  read  the  rest  of  that.  If  you  have  it  among  your  hundred  volumes  I 
will  read  it. 

Mr.  Chandler : — I  haven’t  it.  I  shall  have  it  here  when  I  make  my  closing 
argument.  Mr.  Drury : — I  shall  be  very  happy  to  hear  it  again,  and  have  it 
impressed  upon  the  mind  of  the  Court.  In  Ward  v.  Ward ,  15  Pickering,  51 1, 
it  was  held  that  a  Probate  Court  was  authorized  to  take  notice  of  and  conform 
to  an  agreement  among  some  of  the  heirs,  in  the  final  settlement  of  the  account 
of  the  executor,  in  relation  to  the  testator’s  personal  estate,  instead  of  conform- 


130 


ing  with  the  provisions  of  the  will.  Every  immediate  heir-at-law  was  present 
and  represented,  and  the  counsel  for  the  petitioners  may  cite  all  the  cases  in 
the  Newgate  Calendar,  or  elsewhere  ; — such  a  compromise  is  valid,  made  ten 
times  more  so  by  acquiescence  for  8  or  io  years  after  these  petitioners  became 
of  age,  and  their  keeping  the  money ;  and  made  a  thousand  fold  more  valid  by 
keeping  the  money  after  they  intended  to  begin  and  had  begun  litigation. 

So  then  we  have  not  only  a  will  which  is  valid  in  itself,  but  the  probate  of  a 
will  which  would  be  good  and  conclusive  now  even  if  the  will  had  not  been 
valid. 

Look  at  that  case,  your  Honor,  which  has  been  brought  here  by  these 
petitioners.  See  what  a  beautiful  fabric  they  have  built,  only  to  see  it  come 
tumbling  down  in  ruin  upon  their  heads.  A  fabric  built  on  the  confessed 
ignorance  of  experts,  testifying  about  matters  of  which  they  confessed  they 
never  had  experience  ;  on  the  bare  unaided  memory  of  an  ignorant  woman, 
a  nurse,  as  to  the  date  of  an  event  which  took  place  14  years  ago  ;  upon  the 
visions  and  dreams  of  HazenJ.  Burton,  Sr.,  and  Eliza  W.  Smith;  and  upon 
the  desires,  malignity  and  pretended  suspicions  of  Hazen  J.  Burton,  Jr.,  and 
his  brother,  who  are  capable  of  conceiving  that  a  man  would  commit  a  series 
of  monstrous  crimes  without  a  conceivable  motive,  merely  to  deprive  himself 
of  $15,000,  and  that  man  such  a  fool  as  they  would  make  him  out,  who  has 
been  honored  in  both  hemispheres,  honored  by  his  fellow  citizens,  by  his  city, 
and  by  his  State,  and  is  so  now,. against  whom  nothing  could  be  found,  against 
whom  no  respectable  person  could  be  found  to  say  a  word,  nor  any  person 
whatever  could  be  found  to  testify,  until,  after  raking  and  scraping  New  York, 
they  had  been  obliged  to  go  down  into  the  slums  and  bring  up  the  disreputable 
O’Connor,  covered  all  over  with  the  nastiness  of  his  vile  character  and  repu¬ 
tation,  whose  good  opinion  of  an  honest  man  would  be  defiling  to  that  honest 
man  and  make  that  honest  man  say,  “  What  evil  thing  have  I  done?  Get  thee 
behind  me  Satan  ” — and  whose  worst  opinion  of  an  honest  man  would  be  that 
honest  man’s  best  recommendation  which  that  O’Connor  could  give.  “  Birds 
of  a  feather  flock  together,”  and  these  vultures  of  society,  HazenJ.  Burton,  Sr., 
and  this  O’Connor,  whatever  his  initials  are,  have  come  together  to  await  the 
hoped  for  disinterment  of  the  remains  of  old  Ebenezer  Smith.  As  Joseph 
Cook  has  quoted  in  the  last  lecture  which  he  delivered  in  Tremont  Temple  : 
“  ‘  The  costliest  unclean  beast,’  Thorold  Rogers  says,  ‘  that  society  can  keep  in 
its  menagerie,  is  an  unpunished  commercial  rogue.’  ”  This  is  the  foundation 
upon  which  that  fabric  was  constructed. 

Against  such  a  case  are  the  instincts  of  justice,  revolting  from  the  idea  of 
crime,  the  good  character  of  the  accused,  the  suspicious  and  the  worthless 
character  of  the  accusers,  the  validity  of  the  will  which  cannot  now  be  reason¬ 
ably  doubted,  the  maxims  of  law,  every  presumption,  and  presumptions  which 
gain  strength  and  cumulative  power  with  the  lapse  of  time,  the  knowledge 
obtained  and  easily  obtainable  14  years  ago  as  to  all  the  circumstances  attending 
the  execution  of  the  will,  the  decision  of  this  court  and  the  decision  of  the 
Supreme  Judicial  court  which  have  stood  14  years,  and  a  family  compromise 


entitled  to  the  highest  consideration  in  a  court  of  equity  and  still  higher  in  a 
court  of  law, — a  compromise  acquiesced  in  for  more  than  13  years  and  still  ac¬ 
quiesced  in  and  ratified  by  the  petitioners  themselves  at  this  very  moment  while 
they  are  holding  the  money  which  the  compromise  gave  them. 

Was  I  not,  your  Honor,  right  at  the  outset  of  my  argument,  when  I  said 
that  Hazen  J.  Burton,  Jr.,  his  counsellors,  aiders  and  abettors  are  upon  trial 
here,  and  that  they  are  the  real  defendants  in  this  case  ?  Do  they  not  deserve 
to  be  despised  by  all  honest  men  for  making  such  monstrous  charges  as  were 
contained  in  the  first  petition,  upon  such  a  flimsy  case  as  they  had,  and  for 
prosecuting  those  charges  with  the  malignity  which  they  have  shown  ?  Their 
present  counsel  saw  the  'error,  in  a  legal  point  of  view,  of  the  old  petition 
and  repaired  it  by  presenting  a  mild  petition  which,  if  it  had  left  out  the  words 
“  force,”  “  fraud  ”  and  “  collusion  ”  in  the  Sth  allegation  and  omitted  the  9th 
altogether  and  left  out  “fraudulently,”  '•'•mala  Jide “false  suggestions,”  and 
“surreptitious  and  clandestine  conduct”  in  the  10th,  would  have  been  just  as 
strong  in  a  legal  point  of  view  and  would  not  have  been  offensive.  But  even 
this  petition,  as  it  stands  in  its  present  form,  is  a  surrender  and  would  have 
been  a  more  complete  surrender  if  it  had  stated  his  case  just  as  strongly  with¬ 
out  at  the  same  time  being  offensive  in  any  part.  In  a  legal  point  of  view  the 
amended  petition  is  stronger  than  the  old,  but  in  a  sensational  and  blackmailing 
point  of  view  it  was  weaker,  and  sensation  and  blackmail  were  what  they 
wanted,  and  the  present  counsel  yielded  in  a  fatal  moment,  and  went  back  to 
that  old  petition  for  his  ammunition,  and  brought  out  in  his  opening  argument 
all  that  the  old  petition  contained  and  a  great  deal  more  and  worse,  and  has 
prosecuted  the  case  in  a  more  aggravating  and  sensational  manner,  in  the  news¬ 
papers  and  in  court,  than  even  his  illustrious  predecessor  could  have  done. 

Mr.  Chandler’. — Do  you  intend  that  as  a  left-handed  compliment?  Mr. 
Drury : — I  do, — a  compliment  if  you  take  it  so.  I  don’t  think  that  General 
Butler  would  have  had  the  courage  to  do  it,  and  I  will  give  you  the  credit,  sir, 
of  having  more  courage  than  any  lawyer  whom  I  ever  saw  before,  to  bring 
such  a  case  as  this  into  a  court  of  justice  and  face  it  through  as  we  have  seen 
here. 

What  escape  is  there  for  the  petitioners?  Why,  your  Honor,  134  authorities 
cited  by  the  petitioners  !  Perfectly  appalling  !  I  think,  your  Honor,  before 
you  would  read  these  cases  through,  would  decide  in  his  favor.  I  think  any 
Judge  would.  Why  didn’t  he  abbreviate  and  refer  your  Honor  to  the  first  series 
of  the  United  States  Digest,  14  volumes,  and  the  second  series  of  I  don’t  know 
how  many  volumes,  and  the  Newgate  Calendar  at  large,  and  in  fact  the  whole 
Law  Library?  That  would  have  made  it  short.  In  this  list  of  authorities  cited 
by  the  counsel  and  kindly  furnished  us  I  find, — “  Formalities  cannot  be  waived, 
confessions,  accomplices,  Heard’s  Mass.,  Criminal  Law,  Com?non-wealth  v. 
Billings j  Com?7ionwealth  v.  Wood ,  Roscoe’s  Criminal  Evidence,  Ram  on 
Facts,  Common-wealth  v.  Smith”  and  a  lot  of  criminal  cases,  “  frauds,  forgery, 
concealment,  conspiracy,  undue  influence,”  blood,  homicide,  murder,  and  a 
great  deal  more.  Your  Honor  will  read  of  these  as  applicable  to  this  case,  if 


132 


you  read  those  authorities  through.  They  remind  one  of  the  cry  “  stop  thief” 
made  by  a  thief  when  he  is  running  away  from  justice.  But  that  citation  of 
authorities,  if  it  were  ten  times  as  long,  cannot  save  his  clients  from  disgrace. 

As  I  said  before,  I  say  now,  and  I  will  repeat ;  I  will  give  the  counsel  for  the 
petitioners  this  credit,  this  compliment,  that  he  is  the  most  hopeful  man  and 
the  most  courageous  man  I  ever  saw.  He  never  will  be  deterred  by  any  case 
that  is  offered  him.  If  anybody  hereafter  wishes  a  leader  to  lead  a  forlorn  hope 
to  certain  destruction,  he  will  know  to  whom  to  go.  He  has  clutched  at  every 
hope  and  found  consolation  in  every  trifle.  And  here  I  will  mention  some  shifts 
to  which  he  has  resorted  to  get  out  of  the  position  which  he  is  forced  into. 

But  I  will  pass  on  to  that  ear-trumpet  part  of  the  case,  —  that  is  the  9th  alle¬ 
gation, —  which  says  that  the  proof  heretofore  offered  in  this  court  was  not 
sufficient  to  establish  that  will  as  the  valid  will  of  Ebenezer  Smith.  Now  three 
witnesses  were  asked  whether  they  spoke  to  Judge  Ames  through  an  ear-trump¬ 
et.  I  have  heard  that  the  sounding  of  a  shepherd’s  horn  among  the  Alps  would 
set  a  vast  avalanche  in  motion,  but  I  never  heard  an  ear-trumpet  put  in  such  a 
romantic  position  as  it  has  been  put  in  this  case, — making  a  vast  estate,  amount¬ 
ing  now  perhaps  to  a  million  of  dollars,  and  I  don’t  know  how  many  other 
estates,  depend  upon  the  ear-trumpet  of  a  Judge  before  whom  the  case  was 
heard.  And  they  attack,  your  Honor,  justice  herself,  —  not  only  claim  that  she 
is  blind,  but  that  she  was  in  this  case  deaf  and  needed  an  ear-trumpet  and  didn’t 
use  one,  that  14  years  afterwards  —  and  I  state  it  to  your  Honor  to  show  upon 
what  things  they  rely,  —  14  years  after  a  will  has  been  admitted  to  probate, 
they  bring  forward  the  infirmities  of  the  Judge  who  heard  the  case  as  a  reason 
why  that  will  which  has  s'tood  so  long  should  be  overthrown. 

Another  thing  which  was  clutched  at  very  eagerly  by  the  counsel  for  the 
petitioners  was  that  the  codicil  of  October  1st  was  not  put  into  the  probate 
court,  but  was  concealed.  But  it  was  proved  by  the  evidence  of  Mr.  Welch 
who  was  of  counsel  for  the  executors  that  he  knew  of  the  codicil.  He  and  Dr. 
Thorndike  explain  the  matter  plainly,  and  their  impression  as  to  the  reason  why 
it  was  left  out  is  very  reasonable  and  is  undoubtedly  the  true  one  as  we  can  see. 
Nobody  could  have  reasonably  offered  that  will  of  August  1S64  for  probate, 
except  Mr.  Bangs.  He  could  not  have  done  it  with  the  codicil  in,  because  it 
revoked  his  appointment.  And  then  a  hint  was  thrown  out,  I  believe  it  was  to 
Mr.  Isaac  T.  Smith,  by  the  counsel,  asking  him  if  he  knew  that  the  property 
could  not  have  been  distributed  under  that  codicil ;  and  now  whether  he  is  going 
to  claim  such  an  absurd  thing  as  that,  I  don’t  know.  It  is  true,  your  Honor,  I 
have  demonstrated  it,  that  Ebenezer  Smith  by  the  will  and  two  codicils  does 
dispose  of  19-18  of  his  estate  as  the  counsel  said,  —  19-iS^/M.y  $581.25.  That 
is  tru/C.  But  suppose  that  a  man  makes  a  will  and  gives  to  20  men  each  y’y  of 
his  estate,  does  anybody  mean  to  say  that  the  estate  cannot  be  distributed  under 
that  will,  because  he  has  given  away  more  property  than  he  had?  This  will  of 
August  13,  1864,  was  followed  by  a  codicil  dated  September  2,  1S64,  the  effect 
of  which  was  to  take  out  of  the  way  the  reversion  mentioned  in  the  will  and  to 
leave  Isaac  and  Eliza  W.  and  Sarah  the  same  as  in  the  will  except  as  to  that 


*33 


reversion.  The  codicil  of  October  ist  giving  Sarah  ^  of  f  of  the  property,  in¬ 
stead  of  what  the  prior  will  did,  made  the  disposition  stand  in  this  way  :  —  to 
his  wife  ^  of  his  property,  to  Sarah  ^  of  §,  then  came  the  legacies,  and  the 
balance  was  divided  between  Isaac  and  Eliza  W.  in  the  same  proportions  which 
they  were  to  receive  under  the  will.  Nothing  can  be  clearer,  and  if  your  Honor 
regards  that  as  needing  any  demonstration  I  have  demonstrated  it  in  this  paper 
which  I  hand  to  you. 

Then  another  thing  that  has  been  clutched  at  is  the  fact  that  there  were  two 
compromises  instead  of  one.  What  if  there  were  two  compromises?  There 
was  one  compromise,  which  all  the  heirs  had  signed,  which  related  to  the 
Burtons,  signed,  sealed  and  delivered,  and  that  was  the  compromise  which 
Dwight  Foster  signed,  that  is  the  one  which  he  entered  into  for  his  clients  and 
which  Andrew  N.  Burton  signed,  and  the  other  compromise  had  nothing  more 
to  do  with  it  than  anything  in  this  world,  nothing  at  all.  It  was  not  necessary 
to  get  the  Burtons  to  that,  the  other  heirs-at-law  were  the  only  necessary  parties 
to  the  second  compromise  which  related  mainly  to  Eliza  W.  Smith  and  her 
debts  to  her  father. 

And  another  thing  has  been  that  cell  in  the  house.  Now  I  will  say  one 
thing  to  the  credit  of  Hazen  J.  Burton,  Sr.  He  never  heard  of  that  cell  until 
he  heard  it  here.  Young  Ebenezer  was  the  only  person  that  called  it  a  cell. 
On  that  slight  word, — catch  word, — the  community  has  been  made  to  believe 
that  Ebenezer  Smith  was  an  old  hermit  running  into  a  hole  to  hide  himself 
away  from  his  family,  and  keeping  hid  there  all  the  time,  when  in  fact  he  built 
in  the  lower  part  of  his  house  a  safe  room,  safe  from  burglars  and  safe  from 
everything,  a  very  comfortable  room  about  14  feet  square,  and  nobody  ever 
heard  that  Ebenezer  Smith  lived  in  a  cell  until  the  4th  of  December  last.  And 
that  was  built  to  overcome  a  physical  weakness,  because  he  had  the  complaint 
which  Dr.  Thorndike  testified  to. 

Whiskey  !  The  life  has  been  taken  out  of  that  charge,  “dosed  with  whiskey." 

Primogeniture,  what  a  shadowy  hope  !  And  guardianship,  absurd  ! 

Now  if  your  Honor  please,  I  will  take  a  hasty  glance  over  the  case.  They 
have  called  a  great  many  witnesses,  some  of  them  very  good  men,  but  some  of 
these  men  have  known  nothing  of  the  case,  and  those  who  have  known  any¬ 
thing  about  it  have,  as  a  general  thing,  testified  in  our  favor.  Dr.  Storer  for 
instance.  I  consider  Mr.  Clapp  in  our  favor,  and  Mr.  Rollins  and  Margaret 
Patterson.  Every  respectable  witness  whom  they  have  called,  I  think,  has  tes¬ 
tified  in  our  favor, — even  Phippen  and  Sawyer  the  experts.  A  man  had  a  case, 
I  think  it  was  in  New  Bedford,  before  some  Magistrate  there,  and  brought  in 
his  witnesses,  and  the  lawyer  who  was  acting  for  him  saw  them  ;  they  were  a 
pretty  hard  looking  lot  of  people,  and  he  said  “You  cannot  get  your  case  with 
such  witnesses  as  those,  it  is  no  use  talking."  Just  then  the  Mayor  of  the  City 
came  in.  “  Call  him,”  said  the  client.  “  Does  he  know  anything  about  your 
case?”  said  the  lawyer.  “  No,”  said  the  client,  “  but  he  will  throw  a  kind  of 
air  around  the  rest  of  those  fellows.”  So  it  is  in  this  case. 

Mr.  Chandler :  Judge  Hoar  I  suppose.  Mr.  Loring :  Yes,  he  threw  an 

18 


air.  Mr.  Drury :  I  thought  he  did  throw  an  air, — a  shot  into  their  camp. 
Now  I  come  to  Mrs.  Giles.  I  will  consider  her  very  briefly.  I  am  not  going 
to  say  very  much  about  her.  But  I  could  not  help  laughing,  my  brother  Smith 
could  not  help  laughing,  when  counsel  stood  up  here  and  said  that  we,  on  the 
cross-examination  before  those  Magistrates,  had  not  shaken  her  one  particle ; 
but  we  both  knew  that  when  we  had  got  as  far  as  we  had  in  that  examination 
when  she  played  sick,  we  had  riddled  her  to  pieces.  We  went  down,  we 
searched  into  the  depths  of  that  memory  of  hers  in  every  way  in  which  we 
could  and  we  brought  out  material,  although  it  was  disconnected,  yet  we  brought 
out  material  which  gave  abundant  proof  that  Ebenezer  Smith — better  proof 
than  we  got  any  where  else — was  of  sound  and  disposing  mind  and  memory  on 
the  5th  day  of  October.  His  talk  of  his  going  through  life,  his  troubles,  his 
soliloquies,  and  his  reasoning  with  his  physicians,  and  his  family : — we  got  that 
all  out  of  the  mind  of  Mrs.  Giles.  And  we  knew  that  that  testimony  which 
she  had  given  adverse  to  us  could  be  shown  to  be  utterly  worthless  from  the 
internal  evidence  of  the  deposition  which  we  had  taken.  And  afterwards, 
after  she  came  into  court  here,  we  there  got  very  good  material  in  support  of 
our  case.  We  knew  it  was  impossible,  she  had  ruined  her  credibility  by  say¬ 
ing,  that  she  could  remember  accurately  this  and  that,  but  then  there  was 
something  which  had  gone  out  of  sight,  there  was  something  about  old  Ebenezer 
Smith  there  which  showed  that  there  had  once  been  a  great  deal  there  about 
him.  We  could  see  that  there  was  considerable  which  he  had  said,  although 
she  perhaps  didn’t  state  it  truly.  She  has  made  an  utter  mistake  in  four  partic¬ 
ulars  upon  which  her  testimony  would  be  of  any  value  to  the  petitioners : — 
First ,  as  to  the  time  of  the  execution  ;  second ,  as  to  the  mental  condition  of 
Ebenezer  Smith  ;  third ,  as  to  the  proceedings  which  took  place  at  the  time  of  the 
execution  ;  and  fourth ,  as  to  the  proceedings  in  the  Probate  Court.  She  is  contra¬ 
dicted  by  Mr.  Sohier.  I  asked  her  those  questions  as  to  those  matters  which  are 
contained  in  that  memorandum  of  what  she  said  14  years  ago.  She  disputed  it 
completely,  although  it  was  taken  down  at  that  time  out  of  her  own  mouth  by  that 
upright  man,  Edward  D.  Sohier.  She  is  contradicted  by  Hazen  J.  Burton,  Jr., 
himself  as  to  what  she  said  at  the  first  interview  which  they  had  in  1876,  because 
he  says  that  she  told  him  all  those  particulars  which  she  says  in  her  deposition 
that  she  didn’t  tell  him  at  that  time.  He  knew  the  facts,  according  to  his  own 
testimony,  two  years  ago,  and  yet  he  delayed  to  bring  this  case  forward 
until  1878.  Well,  now  a  woman  may  remember  the  fact  of  witnessing  a  will, 
but  there  is  a  woman  who  is  a  nurse,  attending  people  in  their  dying  hours  and 
has  probably,  since  Ebenezer  Smith  died,  seen  a  hundred  death-bed  scenes  ;  and 
one  death-bed  scene  is  so  much  like  another  that  she  gets  things  confused.  It  is 
impossible  to  remember  all  such  things.  There  might  have  been  times  when  Dr* 
Winslow  Lewis  was  at  some  other  place,  or  when  Dr.  Storer  and  somebody 
else  were  at  some  other  place,  and  she  might  have  got  those  things  confused 
in  that  way.  She  has  lived  in  disease  and  in  a  physical  Golgotha.  I 
once  heard  a  physician  say  that  he  would  rather  live  in  a  physical 
than  in  a  moral  Golgotha.  That  is,  he  would  rather  be  a  physician  than  a 


*35 


lawyer.  We  certainly  have  lived  in  such  a  thing  in  the  course  of  this  trial, 
and  have  seen  the  bad  character  of  witnesses,  and  the  testimony  upon  which 
they  have  attempted  to  overturn  a  will  founded  upon  a  solid  rock,  as  that  is 
'now,  after  14  years  have  elapsed.  She  looks  back  through  all  that  busy  scene, 
through  those  hundred  death-bed  scenes,  back  upon  that  of  Ebenezer  Smith, 
and  through  that  distorting  medium  through  which  she  looks,  and  pretends  to 
remember  accurately  everything  that  took  place  on  the  day  on  which  the  will 
was  signed.  We  know  it  is  perfectly  impossible.  But  she  testified  to  it  with 
the  utmost  recklessness.  And  if  her  memory  is  no  better  than  her  under¬ 
standing,  as  my  brother  Loring  has  suggested  to  me,  then  her  memory  indeed 
is  very  poor :  and  how  could  she  remember  so  well,  a  woman  with  so  little  in¬ 
telligence  really,  who  thought  a  “  codicy”  will  was  one  made  by  a  man  after 
he  became  unconscious?  She  understood  that  this  was  a  “  codicy”  will,  and 
that  Isaac  T.  Smith  told  her  it  was  made  by  a  man  whose  wits  were  gone,  and 
who  had  no  power  to  make  it.  Now  I  say  the  opinion  of  such  a  woman  as 
that,  so  ignorant,  is  not  good  for  anything  as  to  the  mental  condition.  He 
might  have  been  in  a  perfectly  good  mental  condition  in  the  opinion  of  a  court, 
even  upon  her  testimony,  when  her  mere  opinion  would  be  good  for  nothing. 
And  then  she  undertook  to  remember  the  actual  words,  and  to  repeat  from 
memory  the  words  of  an  affidavit  which  she  had  given  in  January  last !  No 
human  mind  could  have  done  it,  and  she  utterly  failed.  She  said  that  she  had 
said  in  that  affidavit  that  Isaac  T.  Smith  prayed  with  his  father  upon  the 
morning  upon  which  he  died.  She  said  no  such  thing  in  the  affidavit,  although 
she  remembered  so  surely  that  she  did  say  it,  and  she  was  as  sure  of  that  as  she 
was  of  any  part  of  her  testimony  !  Her  testimony  is  utterly  unreliable.  She 
pretends  to  remember  what  was  not  said  in  the  Probate  Court  14  years  ago. 

I  spare  all  comment  upon  Eliza  W.  Smith,  after  my  able  associate  in  this 
case  has  gone  over  that  ground.  There  is  nothing  left  of  her.  The  picture  is 
complete.  I  will  not  mar  it.  I  admire  the  skill  of  the  artist.  And  I  will  say 
that  for  a  sister,  for  a  daughter,  for  a  woman,  she  has  shown  herself  in  many 
respects  a  monstrosity.  It  is  said  that  a  woman  is  an  angel  or  a  devil.  She 
herself  says  that  she  is  not  an  angel  like  her  sister  Harriet. 

I  will  say  nothing,  either,  of  Hazen  J.  Burton,  Sr.,  except  one  thing  to  which 
I  will  call  attention.  He  says  that  the  old  man  once  met  him  on  the  street  in 
a  doleful  and  shabby  condition  and  said  I  have  no  home.”  He  was  then 
playing  the  Rag  Picker’s  part, — the  Rag  Picker  of  Paris.  To  his  credit  there 
were  two  things  which  he  did  not  say.  One  was  he  would  not  say  that  he  ever 
heard  that  Ebenezer  Smith  lived  in  a  cell.  And  another  thing  he  never  had 
heard  of  was,  that  there  was  ever  any  talk  of  putting  him  under  guardianship. 
That  is  to  the  credit  of  Hazen  J.  Burton,  Sr. 

Now  as  to  Hazen  J.  Burton,  Jr.,  and  his  brother:  I  will  class  them  to¬ 
gether.  What  motive,  your  Honor,  had  they  for  bringing  this  case  ?  Money 
by  compromise  must  have  been  their  motive.  In  1865  the  case  in  regard  to 
their  grandfather’s  will  was  settled  by  a  compromise.  In  1876  the  case  in 
regard  to  their  grandmother’s  will  was  settled  and  compromised  by  the  obtain- 


i36 


ing  of  their  counsel  fees.  Every  time  thus  far  upon  which  they  have  under¬ 
taken  to  break  a  will  they  have  got  money  in  some  way.  They  have  come  to 
think  that  “  where  there  is  a  will  there  is  a  way” — to  break  it  or  get  money 
out  of  it,  that  any  time  they  undertake  to  attack  the  will  of  their  grandfather  or 
their  grandmother,  they  can  get  money  by  it.  They  depended  upon  the  dread 
of  family  exposure,  and  the  fear  of  the  exposure  of  their  own  infamy  which 
would  show  these  people  against  whom  they  were  acting  what  infamous  rela¬ 
tives  they  had.  As  I  said  before,  I  believe  it  to  be  a  case  of  blackmail,  because 
it  is  founded  upon  nothing.  It  has  been  pursued  in  the  most  aggravating  man¬ 
ner  in  the  public  prints,  and  made  sensational  by  them.  Now  the  publication 
of  those  affidavits  shows  it  in  the  first  place,  and  publishing  two  which  were 
not  filed, — showing  that  the  newspapers  could  not  have  got  at  them  except 
through  them  or  their  counsel.  People  do  not  carry  their  cases  into  the  news¬ 
papers,  unless  they  mean  blackmail.  They  were  the  instigators  of  that  picture 
in  the  Police  Gazette ,  probably. 

Mr.  Chandler:  There  is  no  evidence  of  that  here.  I  think,  your  Honor, 
there  ought  to  be  a  limit  to  this.  There  is  no  evidence  of  any  such  thing  of 
that  kind.  Mr.  Drury:  Now  he  talks  about  the  wrong  done  him  at  the  mak¬ 
ing  of  his  grandfather’s  will.  When  he  says  it  he  knows  it  is  false.  He  knows 
when  he  says  it  that  there  was  a  will  right  behind  it  which  nobody  doubts  that 
his  grandfather  made.  And  the  idea  of  his  standing  here  and  cherishing  a  hate 
against  these  people,  when  he  knows  there  is  a  will  right  behind  it  of  August 
13th,  and  saying  that  a  great  wrong  was  done  him,  and  that  he  was  talking 
with  his  grandmother  of  the  wrong  done  him  about  his  grandfather’s  will  I 
Nobody  did  any  wrong  to  him  about  his  grandfather’s  will.  Look  at  that  list  of 
wills  which  is  contained  in  that  statement  showing  that  “  wonderful  unanimity” 
of  which  Hazen  J.  Burton,  Sr.,  speaks.  And  I  say  he  is  a  sneak  to  say  here 
that  he  thinks  he  was  wronged  by  anybody  but  by  his  own  father  and  his  own 
grandfather.  The  idea  that  these  people,  Mrs.  Ebenezer  Smith  and  his  uncle 
and  aunt,  had  anything  to  do  with  his  having  only  that  $500,  is  perfectly  absurd, 
they  had  nothing  to  do  with  it.  He  got  up  here  and  undertook  to  say  some¬ 
thing  in  regard  to  Isaac  T.  Smith  which  was  contradicted  by  Judge  Hoar  im¬ 
mediately  afterwards ;  also  something  in  regard  to  what  Arthur  G.  Smith  of 
New  York  said,  after  Arthur  had  testified,  and  then  to  show  how  false  he  was 
said  that  he  had  taken  it  down  on  a  memorandum  afterwards.  He  has  shown 
himself  a  liar  upon  the  stand  here.  And  here  furthermore,  sir,  he  said  that 
when  he  got  his  counsel  fees  paid  in  the  case  concerning  his  grandmother’s  will, 
he  told  Mr.  Ranney  and  Mr.  Dillaway  not  to  settle  it  in  such  a  way  but  what  it 
could  be  brought  up  again.  Now  I  say,  that  in  getting  that  money  in  that  way, 
he  has  confessed  himself  dishonest.  That  is  as  bad  as  a  thief,  for  a  man  to  get 
money  in  that  way  under  a  false  pretence  of  settling  a  case,  and  then  not  settling 
it,  intending  at  that  time  to  go  on  with  the  knowledge  which  he  had  and  bring 
that  case  of  his  grandmother  up  again.  Then,  too,  if  your  Honor  please,  to 
show  his  disposition,  he  went  to  Judge  Hoar  and  wanted  this  charge  of  murder 
investigated,  which  had  been  brought  against  Mrs.  Thorndike,  wanted  it  invest- 


*37 


igated  before  anything  was  done  in  regard  to  that  case  concerning  his  grand¬ 
mother’s  will.  If  your  Honor  please,  what  had  the  murder  of  his  grandmother 
to  do  with  her  will,  with  the  validity  of  her  will,  which  had  been  made  three 
years  before?  Why  did  he  go  there  to  Judge  Hoar  with  that  story?  It  had  no 
bearing  upon  the  question.  And  I  don’t  wonder  that  Judge  Hoar,  a  man  who 
has  been  a  Judge  of  the  Supreme  Court  and  learned  how  to  abhor  the  idea  of 
such  a  crime,  became  excited  and  indignant.  If  there  ever  was  a  man  the  sight 
of  whom  would  bring  feeling  to  the  very  toes  of  a  man’s  boots,  and  make  them 
wish  to  fly  at  him,  that  man  is  Hazen  J.  Burton,  Jr.  And  I  don’t  wonder  that 
Judge  Hoar  boiled  with  indignation  when  he  brought  that  accusation.  Why, 
here  is  an  old  lady  worth  a  hundred  thousand  dollars  ;  she  has  made  a  will 
giving  a  large  share  of  her  property  to  her  favorite  daughter.  If  that  old  lady 
dies,  that  daughter  will  have  money.  Now  that  old  lady  dies  an  apparently 
natural  death  in  the  arms  of  that  daughter  at  the  age  of  eighty-eight  years. 
That,  to  the  mind  of  Hazen  J.  Burton,  Jr.,  is  conclusive  proof  that  that  daught¬ 
er  murdered  that  mother  !  God  pity  a  man  who  has  so  much  murder  in  his 
heart  that  he  can  conceive  murder  so  easily.  They  have  been  trying  to  injure 
their  uncle.  Now  what  has  the  position  of  Isaac  T.  Smith  in  New  York  to  do 
with  the  settlement  of  this  case?  Why  should  they  have  any  desire  to  injure 
him  in  New  York?  It  does  not  aflect  this  case.  Why  should  they  have  a  de¬ 
sire  to  injure  their  uncle  Isaac  T.  Smith.  Why  shouldn’t  they  let  him  alone? 
Injure  him  through  this  case,  and  why?  Not  to  have  their  case  settled  except 
by  a  compromise.  It  is  blackmail  and  they  are  blackmailers.  He  has  shown 
himself  a  suborner  of  perjury,  or  rather  an  attempted  suborner  of  perjury,  this 
Hazen  J.  Burton,  Jr.,  has  and  I  could  tell  more  about  this  case,  about  the  way 
in  which  he  has  conducted  this  case,  but  I  will  not  at  the  present  time. 

Mr.  Chandler : — Are  you  referring  to  me,  Mr.  Drury?  Mr.  Drury : — No. 
But  like  the  assassin  they  have  the  satisfaction,  probably,  of  having  succeeded 
in  creating  a  great  deal  of  trouble  and  distress,  and  we  know  that  it  must  have 
been  great  distress  and  great  agony  to  Isaac  T.  Smith,  and  to  Mrs.  Thorndike 
before  she  died,  to  see  such  horrible  things  said  of  them  as  were  said,  because 
this  case  was  prosecuted  in  such  an  infamous  manner.  Why,  if  they  had  stab¬ 
bed  Isaac  T.  Smith  to  the  heart,  they  could  not  have  done  him  an  injury  which 
he  would  more  keenly  have  felt, — in  his  own  feelings,  an  injury  to  his  own 
feelings  and  distress  to  his  own  mind — to  see  his  name  brought  in  question  be¬ 
cause  of  this  case. 

Now  I  believe  that  is  all  I  wish  to  say  of  their  witnesses.  I  believe  I  have 
touched  upon  all  their  witnesses  ;  and  I  ask  your  Honor  to  compare  in  one  scale 
the  witnesses  upon  whom  they  intend  to  rely  for  their  case,  and  then  put  into 
another  scale  our  witnesses  upon  whom  we  rely  for  the  support  of  our  case,  and 
determine  between  them. 

I  shall  not  say  anything  of  the  characters  of  my  clients  and  their  witnesses, 
or  of  any  of  the  defendants,  because  that  matter  has  already  been  ably  and  suf¬ 
ficiently  touched  upon  by  the  counsel  who  has  preceded  me. 

Before  I  close,  your  Honor,  I  would  like  to  say  this.  When  I  started  out  in 


this  case  I  was  alone  and  without  the  aid  of  Mr.  Isaac  T.  Smith’s  able  counsel, 
whose  sympathy  and  support  will  be  among  my  most  pleasant  recollections  in 
connection  with  this  case,  and  who  has  shared  with  me  in  the  feeling  that  this 
attack  upon  our  clients  has  been  also  an  attack  upon  us,  upon  you  and  upon  hu¬ 
manity  itself.  I  started  out  with  hardly  any  facts,  with  only  perhaps  three  facts 
which  I  was  then  knowing  to,  but  the  farther  I  have  proceeded,  and  the  more 
research  I  have  made,  the  more  firmly  I  have  become  convinced  of  the  truth  of 
our  cause.  The  scattered  fragments  of  this  case  have  fitted  together  perfectly. 
It  has  been  like  a  sheet  of  parchment  which  had  been  torn  into  a  hundred  parts 
and  scattered  to  the  four  winds  of  heaven,  and  then  those  pieces  gathered  14 
years  afterwards  and  brought  together  again.  It  has  been  a  great  deal  of  labor 
to  do  this.  I  started  out  here  with  simply  the  memory  of  Dr.  Thorndike  as  to 
that  conversation  between  Andrix  A.  Foster  and  Ebenezer  Smith,  and  as  to 
what  occurred  at  the  execution  of  the  codicil  of  October  1,  and  as  to  the  con¬ 
tents  of  that  codicil,  which  annulled  the  idea  that  Mrs.  Thorndike  had  anything 
to  do  with  the  getting  of  a  will  by  snch  means  as  were  alleged.  Those  were 
the  facts  which  I  started  out  on.  I  proceeded  to  investigate  that  signature.  I 
found  out  that  you  could  not  tell  from  its  appearance  who  wrote  it  or  how  it  was 
made.  That  is  the  way  I  started  in  this  case,  and  I  have  had  to  beg  men,  as  I 
did  Mr.  Sohier,  as  I  was  reluctant  to  do,  almost  to  bore  him  to  make  a  hunt 
through  his  papers  to  see  if  there  was  not  something  bearing  upon  this  case. 
And  your  Honor  can  imagine  my  rejoicing  when  I  found  among  those  old 
papers  of  Edward  D.  Sohier  the  perfect  corroboration  of  what  Dr.  Thorndike 
had  said  ;  and  also  the  perfect  contradiction  of  Mrs.  Giles.  I  also  found  papers 
preserved  by  the  executrix  of  Paul  Willard  which  corroborated  what  Dr. 
Thorndike  had  told  me  about  the  execution  of  the  codicil  of  October  1st, — he 
told  me  the  particulars  about  that  in  almost  the  exact  words  of  the  statement  of 
James  Wight,  which  I  afterwards  found.  So  the  further  research  we  have 
made  the  more  we  have  found.  These  parts  of  the  case  fit  together,  and  have 
established  our  case  beyond  any  reasonable  doubt.  And  I  will  close  now,  your 
Honor,  thanking  you  for  the  attention  which  you  have  given  me,  by  saying  that 
I  hope  that  this  case  may  receive  such  a  judgment  and  in  such  terms  as  it 
deserves. 


Vo  ^  (c  *  fc  * 


rot.  l  ^ 


